104 F. Supp. 3d 392
S.D.N.Y.2015Background
- DS, a 15-year-old with Tourette syndrome and generalized anxiety disorder, has average IQ and reading at grade level but math about one year behind (June 2012).
- DS previously attended Lang School (2010–2012) with DOE funding; May 29, 2012 enrollment contract included an escape clause for a public placement.
- CSE on June 7, 2012 recommended an Integrated Co-Teaching (ICT) class for 2012–2013, with ~25 students and two teachers; DS would require substantial 1:1 support.
- DOE notified August 15, 2012 of DS’s placement at Henry Street School for International Studies (H292); Parents unilaterally enrolled DS at Lang for 2012–2013 and sought tuition reimbursement.
- IHO concluded the ICT placement was appropriate and Lang unilateral placement permissible, awarded partial tuition; SRO affirmed ICT as appropriate and vacated tuition award; DOE moved for summary judgment and Parents cross-moved.
- The action seeking review of the administrative decisions culminated in the Court granting DOE summary judgment and denying Parents’ motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ICT placement was reasonably calculated to provide DS educational benefits | Parents argue ICT is necessary for DS’s anxiety and motivation | DOE contends ICT appropriately meets DS’s needs | ICT placement deemed appropriate |
| Whether CSE’s failure to consider the 2011 independent evaluation denied DS a FAPE | Parents claim CSE ignored relevant outside evaluation | Court held reliance on 2012 evaluation substantively reasonable | Procedural error did not deny FAPE |
| Whether failure to conduct an FBA/BIP denied DS a FAPE | Parents contend FBA/BIP were required due to DS’s behaviors | IEP contained sufficient behavioral management strategies; no FBA required | No denial of FAPE; FBA not required given IEP provisions |
| Whether HO9 colocates the specific brick-and-mortar placement to DS’s IEP is improper without DS having attended | Parents claim H292 would impede DS due to ESL, noise | Post-meeting implementation not permitted to render IEP invalid; evidence about H292 speculative | Placement decision not rendered invalid by non-attendance; de novo review limited to written IEP with deference to SRO/IHO |
Key Cases Cited
- Honig v. Doe, 484 U.S. 305 (U.S. 1988) (IEP must be reasonably calculated to enable benefits)
- Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (U.S. 1982) (IEP must be reasonably calculated to provide educational benefits)
- R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012) (SRO/IHO deference and IEP adequacy standards; time-of-drafting viewpoint)
- M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217 (2d Cir. 2012) (IEP validity with reliance on more recent evaluations; educational progress standard)
- T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145 (2d Cir. 2014) (Continua of placements and reasonableness in suitability determinations)