R.E. Ex Rel. J.E. v. New York City Department of Education
694 F.3d 167
| 2d Cir. | 2012Background
- Three IDEA cases involve autistic children and private placements after parents rejected the DOE’s public placements.
- The IHO initially ruled for tuition reimbursement in each case, but the SRO reversed in all but one, basing outcomes on testimony about services not listed in the IEPs.
- This opinion holds that the IEP must be evaluated prospectively as of the placement decision, and retrospective testimony about services not in the IEP may not alter the written plan.
- Retrospective testimony may explain or justify the IEP but cannot materially modify it.
- Procedural violations common to all cases include failure to conduct an adequate FBA and to provide parent counseling; in two cases, SRO relied on retrospective testimony to justify placement details.
- The court affirms two district court rulings (R.K. and E.Z.-L.) and reverses one (R.E.).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prospective vs retrospective evaluation of IEP | R.E. argues the IEP should be judged prospectively. | DOE argues retrospective evidence supports constructive FAPE. | IEP must be evaluated prospectively; retrospective evidence cannot modify IEP. |
| Adequacy of FBA and BIP in IEPs | Failure to conduct FBA/BIP violated FAPE. | FBA/BIP omissions do not always deny FAPE; other supports may suffice. | FBA is essential; failure to conduct can deny FAPE, especially with meaningful behavioral concerns. |
| Role of SRO vs IHO in deference | IHO’s reasoning should be given weight when SRO is thinly reasoned. | SRO decisions deserve deference, especially on educational policy matters. | Deference to SRO generally warranted, but highly reasoned IHO may prevail when SRO is inadequately reasoned. |
| Placement specifics vs general IEP provisions | Parents must be involved in site/location decisions. | Placement decisions can be made by DOE within the IEP framework without site specifics. | Parent involvement pertains to general placement structure, not necessarily specific school site; DOE may select site consistent with IEP. |
| Procedural violations cumulative effect | Multiple procedural flaws cumulatively deny a FAPE. | Isolated procedural issues may not deny FAPE unless substantial. | Minor violations may cumulate to deny FAPE; substantial procedural flaws require remedy. |
Key Cases Cited
- Bd. of Educ. v. Rowley, 458 U.S. 176 (Supreme Court 1982) (IEP must be reasonably calculated to provide educational benefit)
- Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7 (Supreme Court 1993) (Burlington/Carter framework for reimbursement)
- Sch. Comm. of Town of Burlington v. Dep’t of Educ., 471 U.S. 359 (Supreme Court 1985) (Burlington/Carter framework foundations for reimbursement)
- Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 (2d Cir. 2007) (deference to state educational expertise in IEP review)
- D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503 (2d Cir. 2006) (IEP central to IDEA; evaluation and services alignment)
- T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412 (2d Cir. 2009) (prospective evaluation of IEP; caution on retrospective amendments)
- D.S. v. Bayonne Bd. of Educ., 602 F.3d 553 (3d Cir. 2010) (limits on retrospective explanations of IEP terms)