M.O. ex rel. D.O. v. New York City Department of Education
2015 U.S. App. LEXIS 12161
| 2d Cir. | 2015Background
- D.O., a student with a speech/language impairment, had an IEP (June 2011) recommending repeating 2nd grade in a 12:1:1 special class with specified related services for 2011–2012.
- DOE initially assigned P.S. 213 (no 2nd grade there); parents objected and DOE reassigned to P.S. 159. Parents declined placements, enrolled D.O. at the private Lowell School, and sought tuition reimbursement.
- Parents filed a due process complaint challenging the IEP’s substance and the adequacy of DOE-assigned schools (P.S. 213, P.S. 159/46). An IHO found DOE provided a FAPE; the IHO did not separately analyze adequacy of P.S. 159.
- The SRO affirmed, reasoning that under R.E. the IEP is evaluated prospectively and DOE need not present evidence of actual implementation when parents reject the IEP and won’t allow implementation.
- The district court granted summary judgment for DOE; the Second Circuit affirmed, holding parents’ school-specific claims were substantive attacks on the IEP (evaluated from the written IEP) rather than permissible prospective challenges to a school’s capacity to implement the IEP.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DOE had to prove P.S. 159 could implement D.O.’s IEP at the IHO hearing | Parents: DOE must present evidence that P.S. 159 could implement the written IEP (capacity, open seat, ability to provide services) | DOE: Under R.E., evaluation focuses on the written IEP; when parents reject the IEP before implementation, DOE need not present school-specific implementation evidence | Held: Claims to P.S. 159 were substantive challenges to the IEP; DOE had no obligation to present evidence about P.S. 159’s implementation capacity and provided a FAPE |
| Whether speculative concerns about future failure to implement an IEP justify unilateral private placement | Parents: Concern that assigned class composition/size/teaching method would prevent IEP’s effectiveness | DOE: Speculation that a school will not adhere to the IEP is insufficient; evaluation is prospective and tied to the written IEP | Held: Speculative assertions that DOE would fail to follow the IEP are not a valid basis for unilateral placement; only non-speculative, school-capacity defects (e.g., missing required services) support a challenge |
| Whether an offered placement that lacks a specific IEP-mandated element (e.g., grade level) renders the IEP unimplementable | Parents: P.S. 213 lacked a second grade classroom required by the IEP | DOE: Reassigned student to P.S. 159 once notified; thus remedied the specific defect | Held: P.S. 213’s initial lack of a 2nd grade was not a valid FAPE denial because DOE reassigned D.O.; isolated, remediable assignment defects do not automatically deny FAPE |
| Standard for prospective challenges to assigned schools after R.E. | Parents: R.E. allows challenges to a school’s capacity to implement an IEP without physical attendance | DOE: R.E. limits inquiry; challenges must be non-speculative and tied to concrete absence of required services | Held: R.E. does not bar all prospective school-capacity challenges; courts may review school capacity when the challenge shows the assigned school lacks services required by the IEP, but not where claim rests on speculation about failure to implement |
Key Cases Cited
- Hardison v. Bd. of Educ., 773 F.3d 372 (2d Cir. 2014) (IDEA FAPE requirement overview)
- Reyes ex rel. R.P. v. N.Y.C. Dep’t of Educ., 760 F.3d 211 (2d Cir. 2014) (parents bear financial risk for unilateral placements)
- R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012) (IEP evaluated prospectively; retrospective testimony cannot cure a deficient IEP)
- M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217 (2d Cir. 2012) (IEP must be reasonably calculated to produce progress)
- Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 (2d Cir. 1998) (IEP substantive-standard principles)
- A.C. ex rel. M.C. v. Bd. of Educ., 553 F.3d 165 (2d Cir. 2009) (standard of review and deference to administrative findings in IDEA cases)
- T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412 (2d Cir. 2009) (district cannot assign student to a school that cannot satisfy the IEP’s requirements)
- Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473 (2d Cir. 2014) (appellate court may affirm on any basis supported by the record)