J.C., individuаlly and on behalf of C.C., J.F., individually and on behalf of C.C., Plaintiffs-Appellants, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant-Appellee.
No. 15-1296-cv.
United States Court of Appeals, Second Circuit.
March 16, 2016.
31
Tracey Spencer Walsh, New York, NY, for Appellant. Jonathan A. Popolow, of counsel (Richard Dearing, of counsel, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Appellee. Present: ROSEMARY S. POOLER, RICHARD C. WESLEY, Circuit Judges, and RICHARD K. EATON,* Judge.
Jonathan A. Popolow, of counsel (Richard Dearing, of counsel, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Appellee.
Present: ROSEMARY S. POOLER, RICHARD C. WESLEY, Circuit Judges, and RICHARD K. EATON,* Judge.
SUMMARY ORDER
Plaintiffs-appellants J.C. and J.F. appeal from the March 31, 2015 opinion and order of the district court for the Southern District of New York (Gardephe, J.), granting defendant-appellee New York City Department of Education‘s motion for summary judgment and denying plaintiffs-appellants’ motion for summary judgment on plaintiffs’ suit seeking, pursuant to the Individuals with Disabilities Education Act (“IDEA“),
Plaintiffs first argue that we should defer to the conclusions of the Impartial Hearing Officer (“IHO“) instead of the State Review Officer (“SRO“) because the SRO‘s decision was not careful or thorough. But where, as here, “the IHO and SRO disagree, we defer to the reasoned conclusions of the SRO as the final stаte administrative determination.” C.F. ex rel. R.F. v. N.Y.C. Dep‘t of Educ., 746 F.3d 68, 77 (2d Cir.2014) (internal quotation marks omitted). “[W]here the SRO‘s determinations are insufficiently reasoned to merit defеrence, the courts should defer to the IHO‘s analysis,” id., but that is simply not the case here. We therefore defer to the SRO‘s analysis on issues it reached.
We next turn to the merits of plaintiffs’ claim for reimbursement. When parents
We conduct a two-part inquiry under the first prong of the Burlington-Carter test. “At the first step, courts examine whether there were procedural violations of the IDEA, namely, ‘whether the state has сomplied with the procedures set forth in the IDEA.‘” R.E. v. N.Y.C. Dep‘t of Educ., 694 F.3d 167, 190 (2d Cir.2012) (quoting Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir.2005)). “Courts then examine whether the [Individualized Education Plan (“IEP“)] was substantively adequаte, namely, whether it was reasonably calculated to enable the child to receive educational benefits.” Id. (alteration and internal quоtation marks omitted). If an IEP is substantively inadequate, parents are “automatically entitle[d] to reimbursement.” Id. “Procedural violations, however, only [entitle a parent to reimbursement] if they ‘impeded the child‘s right to a [FAPE],’ ‘significantly impeded the parents’ opportunity to participate in the decisionmaking process,’ or ‘caused a deprivation of educational benefits.‘” Id. (second alteration in original) (quoting
We first address the procedural violations of the IDEA. First, it is undisputed that the IEP failed to provide for parent training and counseling, and that this constituted a procedural violation of the IDEA and New York state law. See C.F., 746 F.3d at 81. But this is a “less serious” procedural violation, and the “failure to provide counseling ordinarily does not result in a FAPE denial or warrant tuition reimbursement.” M.W. ex rel. S.W. v. N.Y.C. Dep‘t of Educ., 725 F.3d 131, 141-42 (2d Cir.2013) (internal quotation marks omittеd). We defer to the SRO‘s soundly reasoned conclusion that this omission, on its own, did not result in a FAPE denial.
We next address the Local Committee on Special Education‘s (“CSE“) failure to conduct a functional behavioral assessment (“FBA“) or develop a behavioral intervention plan (“BIP“). “New York regulations requirе the department to conduct an FBA for a student whose behavior impedes his or her learning or that of others.” R.E., 694 F.3d at 190 (quoting
Having concluded that no procedural violation deprived C.C. of a FAPE, we turn to the question of whether the IEP was substantively adequate. Plaintiffs argue that we should consider evidence that the classroom C.C. would have been placed in did not contain an appropriate grouping of students under the IDEA or New York state law. However, our precedent bars us from considering such retrospective evidence. First, in R.E., our Court held that, “[i]n determining the adequacy of an IEP, both parties are limited to discussing the placement and services sрecified in the written plan and therefore reasonably known to the parties at the time of the placement decision.” 694 F.3d at 187. Further, we held that “our evaluation must focus on the written plan offered to the parents,” and “[s]peculation that the school district will not adequately adhere to the IEP is nоt an appropriate basis for unilateral placement.” Id. at 195. In M.O. v. New York City Department of Education, 793 F.3d 236 (2d Cir.2015), our Court held that, under R.E., parents could bring challenges based on the assigned school‘s actual, and non-speculative, inability to comply with the IEP without first enrolling their child in the deficient school. Id. at 244. But grouping evidence is not the kind of non-speculative retrospective evidence that is permissible under M.O. The school possessed the capacity to provide an appropriate grouping for C.C., and plaintiffs’ challenge is best understood as “[s]peculation that the school district [would] not [have] adequately adhere[d] to the IEP.” R.E., 694 F.3d at 195.
Finally, plaintiffs argue that the Department of Education‘s failure to adequately notify them of the summer school relocation rendered the IEP substantively inadequate. We affirm the district court‘s holding that it did not, for substantially the same reasons as those stated in its well-reasoned opinion.
Wе have considered the remainder of plaintiffs’ arguments and find them to be without merit. Accordingly, the order of the district court hereby is AFFIRMED.