R.E., Individually, on behalf of J.E., M.E., Individually, on behalf of J.E., Plaintiffs-Appellees, v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant-Appellant. R.K., by her parents R.K. and S.L., Plaintiff-Appellee, v. New York City Department of Education, Defendant-Appellant. E.Z.-L., by her parents R.L. and A.Z., Plaintiff-Counter-Defendant-Appellant, v. New York City Department of Education, Defendant-Counter-Claimant-Appellee.
Docket Nos. 11-1266-cv, 11-1474-cv, 11-655-cv.
United States Court of Appeals, Second Circuit.
Argued: April 24, 2012. Decided: Sept. 20, 2012.
694 F.3d 167
Before: WINTER, JOHN M. WALKER, JR., and CABRANES, Circuit Judges. JOHN M. WALKER, JR., Circuit Judge:
Viewed through the eyes of a reasonable prosecutor, appellants’ acts in the present case were well within their legitimate functions as prosecutors. Monserrate had been arrested prior to appellants’ interview of appellee. Once the arrest took place, legal decisions at the core of the prosecutorial function—pursuit of the charges, arraignment, bail, etc.—had to be made by appellants and mаde quickly. The interview of appellee was clearly in a “pending or in preparation [of] a court proceeding in which the prosecutor acts as an advocate.” Warney, 587 F.3d at 123.
Appellee was obviously an important witness with regard to the proceeding against Monserrate. That she claimed her injuries resulted from an accident hardly weighed against interviewing her. Viewing the circumstances objectively, her claim that her injuries were the result of an accident might well cause a reasonable prosecutor to believe that interrogation was even more necessary than would have been the case in more common circumstances. A reasonable prosecutor easily could—should—have viewed a first-hand interview and personal weighing of the credibility of appellee‘s self-рropelled-shattering-glass story as necessary. While questioning an important witness may accurately be described as investigative, appellants’ interview was an integral part of appellants’ advocatory function as prosecutors protected by absolute immunity. See, e.g., Imbler, 424 U.S. at 430, 96 S.Ct. 984.
Because the objective circumstances triggered absolute immunity, appellee‘s allegations that the interview was in furtherance of a conspiracy to “create statements that would falsely implicate [Monserrate] of a crime and falsely state comments that were allegedly made by [appellee]” are irrelevant. See, e.g., Hill, 45 F.3d at 662.
CONCLUSION.
For the foregoing reasons, the order of the district court dated May 27, 2011, denying absolute immunity to the appellants is vacated and remanded for proceedings consistеnt with this opinion.
Alan G. Krams (Kristin M. Helmers, Lesley Berson Mbaye, Stephen J. McGrath, Kimberly Conway, Julie Steiner,
Gary S. Mayerson, (Tracey Spencer Walsh, Brianne N. Dotts, on the brief), Mayerson & Associates, New York, New York, for Plaintiff-Counter-Defendant-Appellant E.Z.-L.
These cases require us to resolve several legal issues related to the rights of disabled children under the
In each case, the parents sought to have the SRO‘s determination reversed by the appropriate United States District Court, and in two of the three cases they succeeded. In R.E., no. 11-1266-cv, the District Court for the Southern District of New York (Robert W. Sweet, Judge) found that the Department failed to provide the student with a free and appropriate public education (“FAPE“) and granted summary judgment for the parents. In R.K., no. 11-1474-cv, the District Court for the Eastern District of New York (Kiyo A. Matsumoto, Judge) similarly found that the Department failed to provide the student with a FAPE and granted summary judgment for the parents. In E.Z.-L., no. 11-655-cv, however, the District Court for the Southern District of New York (Sidney H. Stein, Judge) found that the Department had provided the student with a FAPE and granted it summary judgment.
Among the legal conclusions we reach, we conclude that the use of retrospective testimony about what would have happened if a student had accepted the Department‘s proposed placement must be limited to testimony regarding the services described in the student‘s individualized educational program (“IEP“). Such testimony may not be used to materially alter a deficient written IEP by establishing that the student would have received services beyond those listed in the IEP. In light of this and other legal conclusions, we reverse the decision of the district court in R.E., and we affirm the decisions of the district courts in R.K. and E.Z.-L.
BACKGROUND
I. The Legal Framework
Before delving into the facts of these cases, it is useful to understand the legal framework of the IDEA. A state receiving federal funds under the IDEA must provide disabled children with a free
In New York, the state has assigned responsibility for developing IEPs to local Committees on Special Education (“CSEs“).
If a parent believes that his child‘s IEP does not comply with the IDEA, the parent may file a “due process complaint” (a type of administrative challenge unrelated to the concept of constitutional due process) with the appropriate state agency.
II. Facts
Like most IDEA cases, the consolidated appeals before us are fact-intensive. We therefore find it necessary to set forth in some detail the facts of the three cases.
A. R.E., No. 11-1266-cv
1. Background
J.E., the son of R.E. and M.E., is an autistic child born in 1999. Since September 2002, J.E. has attended the private McCarton School (“McCarton“) located in Manhattan. May 2007, R.E. and M.E. rejected the Department‘s offer of a 6:1:1 (six students, one teacher, one paraprofessional aide) classroom setting in a special public school for the 2007-08 school year. After the Department conceded that the 2007-08 placement had failed to provide а FAPE, the IHO found that the parents were entitled to reimbursement, which conclusion is not challenged in this appeal. J.E. continued at McCarton during the 2007-08 school year.
At McCarton, J.E. was in a classroom with five other children and a 1:1 student-
2. The IEP
On May 21, 2008, the Department convened a CSE to develop an IEP for the 2008-09 school yeаr. Present at this meeting were R.E., J.E.‘s father; Xin Xin Guan, the Department‘s representative; Jane O‘Connor, a special education teacher; Jeanette Betty, a parent representative; Tara Swietek, J.E.‘s head teacher at McCarton; Kelly Lynn Landris, a McCarton speech and language pathologist; Nipa Bhandari, a McCarton occupational therapist; and Ivy Feldman, McCarton‘s director.
Because J.E. had never attended public school, the CSE relied primarily on information it received from McCarton. This information consisted of an educational progress report, which explained J.E.‘s aptitude with communication, cognition, social skills, and adaptive behaviors, and recommended continuation of his current course of 1:1 therapy; a speech and language progress reрort, which evaluated J.E.‘s language abilities and recommended a continued course of five 60-minute sessions per week; and an occupational therapy progress report, which outlined J.E.‘s progress and goals and recommended that he continue with his current course of five 45-minute sessions per week and continue to participate in yoga sessions. Additionally, Carol Schaechter, a Department employee, observed J.E. for one day at McCarton. Her report related J.E.‘s activities and noted some behavioral problems. It made no recommendations.
The resulting IEP offered J.E. a 12-month placement in a special class in a public school with a staffing ratio of 6:1:1. It also provided J.E. with a dedicated full-time paraprofessional aide. The IEP included speech therapy, oсcupational therapy, and counseling as related services. The CSE also produced a Functional Behavioral Assessment (“FBA“). The FBA identified six problem behaviors that interfere with J.E.‘s learning: scripting/self-talk, eye closing, vocal protests, impulsivity, anxiety, and escape behaviors. The CSE created a corresponding Behavior Intervention Plan (“BIP“), stating that prompting, redirection, positive reinforcement, token economy, and a written schedule were the primary strategies that would be used to address J.E.‘s problem behaviors.
On June 9, 2008, the Department mailed R.E. and M.E. a final notice of recommendation (“FNR“) offering a classroom at P.S. 208 that provided the services listed in the IEP. After the parents visited P.S. 208, R.E. sent a letter to the Department rejecting the proposed placement because it lacked sufficient 1:1 instruction. R.E. stated that he would be willing to consider other placements, but that if none was offered, J.E. would continue at McCarton. The Department did not offer an alternative placement, and on February 11, 2009, the parents filed a Demand for Due Process seeking tuition reimbursement for the 2008-09 school year.
3. The Due Process Hearing and IHO Determination
At the due process hearing, Department psychologist Xin Xin Guan, who had repre-
Peter De Nuovo, a special education teacher at P.S. 208, testified that he would have been J.E.‘s teacher at P.S. 208. He described his classroom, noting that for the 2008-09 school year, he had five students in his class ranging from nine to twelve years old. He stated that he was supported by a classroom paraprofessional, Kesha Danc, who had about ten years’ experience working with autistic children, and that, in addition, three of the students had their own paraprofessionals. De Nuovo dеscribed his methods of instruction. He also testified about techniques he would have used to remedy J.E.‘s problem behaviors.
Two McCarton personnel, Joe Pierce and Ivy Feldman, countered the testimony of Guan and De Nuovo: they testified that J.E. requires 1:1 teacher support and would not be able to learn in a 6:1:1 setting.
On August 28, 2009, IHO William J. Wall issued a decision granting the parents’ reimbursement request. He noted that the Department representatives had no personal knowledge of J.E., but the McCarton personnel did. He found that the evidence before the CSE did not support the conclusion that J.E. could succeed in a 6:1:1 setting because the only evaluations of J.E. stated that he required 1:1 teacher support. Additionally, he found that the proposed IEP did not include the amount of related services recommended by the McCarton repоrts. The IHO concluded that “[t]he testimony and the evidence does not support the District‘s conclusion that a 6:1:1 program would be an educational setting that would be calculated to provide [J.E.] with meaningful educational progress.” IHO Decision at 7, J.A. 673.
The IHO also faulted the Department for its failure to conduct an adequate FBA and develop an appropriate BIP. Although these documents were prepared, they purportedly failed to meet the criteria laid out in New York State regulations because they did not contain specific information about the frequency, duration, and intensity of the problem behaviors. See
4. The SRO Decision
The Department appealed, and on December 14, 2009, SRO Paul F. Kelly issued a lengthy opinion reversing the IHO and denying tuition reimbursement. The SRO concluded that the goals and objectives listed in the IEP were adequately linked to J.E.‘s academic level and needs, and that, contrary to the IHO‘s finding, a 6:1:1 program was appropriate. The SRO noted De Nuovo‘s testimony that his class actually consisted of five students and five adults (himself, the classroom aide, and
The SRO went on to state that De Nuovo would have “adapted the New York State curriculum to meet the students’ individual needs.” Id. He cited specific examples from De Nuovo‘s testimony as to what strategies he would have used to work with J.E. The SRO also found that the lack of specific data in the FBA was not fatal to the IEP. He noted that the IEP contained strategies to deal with J.E.‘s problem behaviors and also referred to specific strategies that De Nuovo would have used in the classroom. Finally, he concluded that the absence of parent training and counseling from the written IEP was acceptable because the record showed that adequate counseling opportunities would have been available at P.S. 208.
5. Proceedings in the District Court
The parents then brought this action in the United States District Court for the Southern District of New York seeking a reversal of the SRO‘s decision. On March 11, 2011, the district court granted summary judgment for the parents and reversed the SRO. R.E. v. N.Y.C. Dep‘t of Educ., 785 F.Supp.2d 28 (S.D.N.Y. 2011). The district court found that the SRO had based his conclusion on “after-the-fact testimony ... as to what the teacher, De Nuovo, would have done if J.E. had attended his class.” Id. at 41. It adopted the rule that “[t]he sufficiency of the IEP is determined from the content within the four corners of the IEP itself.” Id. at 42. The district court found that the SRO had reversed the IHO primarily on the basis of De Nuovo‘s testimony, and that there was no evidence in the record to support the SRO‘s conclusion that a 1:1 paraprofessional aide was adequate for J.E. Id. at 42-43. It further concluded that the SRO‘s decision was not based on educational policy, “particularly given that it relies so heavily on the testimony [of] individuals who lacked personal knowledge of J.E.” Id. at 43. The Department appeals.
Although each of the three cases on appeal involves individualized and unrelated facts, we address them in a single opinion because they involve common issues of law. Accordingly, we first examine these common issues before applying the law to each individual case.
I. Legal Framework
“We review de novo the district court‘s grant of summary judgment in an IDEA case. Summary judgment in this context involves more than looking into disputed issues of fact; rather, it is a ‘pragmatic procedural mechanism’ for reviewing administrative decisions.” A.C. ex rel. M.C. v. Bd. of Educ., 553 F.3d 165, 171 (2d Cir. 2009) (internal citations omitted). A federal court reviewing a dispute over an IEP must base its decision on the preponderance оf the evidence. Id. Moreover, we must defer to the administrative decision because “the judiciary generally lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.” Id. Deference is particularly appropriate when the state officer‘s review “has been thorough and careful,” but still we do not “simply rubber stamp administrative decisions.” Walczak, 142 F.3d at 129.
Under
The parties have presented four common questions of law that we must resolve before turning to each case individually: First, when, if ever, is it permissible for a district to augment the written IEP with retrospective testimony about additional services that would have been provided at the proposed placement; second, when an IHO and SRO reach conflicting conclusions, what deference should a court pay to each; third, at what point do violations of state regulations governing the IEP process amount to a denial of a FAPE entitling the parents to reimbursement; and finally, must parents be involved in the selection of a specific school for their child?
Retrospective Testimony
This appeal primarily calls upon us to consider the appropriateness of what we have labeled “retrospective testimony,” i.e., testimony that certain services not listed in the IEP would actually have bеen provided to the child if he or she had attended the school district‘s proposed placement. In each of the cases now before us, the Department offered retrospective testimony at the IHO hearing to overcome deficiencies in the IEP, and the SRO relied on this retrospective testimony in varying degrees to find that the Department had provided a FAPE.
The parents urge us to adopt a rigid “four corners” rule prohibiting any testimony about services beyond what is written in the IEP. The Department counters that review should focus on the services the child would have actually received and therefore should include evidence of services beyond those listed in the IEP. Although we decline to adopt a four corners rule, we hold that testimony regarding state-offered services may only explain or justify what is listed in the written IEP. Testimony may not support a modification that is materially different from the IEP, and thus a deficient IEP may not be effectively rehabilitated or amended after the fact through testimony regarding services that do not appear in the IEP.
The permissibility of retrospective testimony is an open question in this circuit. See D.F. ex rel. N.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598-99 (2d Cir. 2005) (“[T]his court has not, as yet, decided if it is error to consider retrospective evidence in assessing the substantive validity of an IEP.“). Three of our sister circuits have addressed similar, though not identical, questions and have disfavored retrospective evidence. See Adams v. Oregon, 195 F.3d 1141, 1149 (9th Cir. 1999) (“[W]e examine the adequacy of [the IEPs] at the time the plans were drafted.“); Carlisle Area Sch. v. Scott P., 62 F.3d 520, 530 (3d Cir. 1995) (holding that an IEP must be judged prospectively from the time of its drafting); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990) (“[A]ctions of school systems cannot ... be judged exclusively in hindsight. An IEP
The same conclusion has been reached by a number of district courts in this circuit. See R.E., 785 F.Supp.2d at 41-42; R.K., 2011 WL 1131492, at *20; J.R. v. Bd. of Educ. of City of Rye Sch. Dist., 345 F.Supp.2d 386, 395 (S.D.N.Y. 2004); Antonaccio v. Bd. of Educ., 281 F.Supp.2d 710, 724 (S.D.N.Y. 2003). But see E.Z.-L., 763 F.Supp.2d at 597-98 (finding that lack of parent training provision in IEP did not amount to a violation because hearing testimony established that school would have provided training); M.N. v. N.Y.C. Dept. of Educ., 700 F.Supp.2d 356, 368 (S.D.N.Y. 2010) (same).
We now adopt the majority view that the IEP must be evaluated prospectively as of the time of its drafting and therefore hold that retrospective testimony that the school district would have provided additional services beyond those listed in the IEP may not be considered in a Burlington/Carter proceeding.
The Supreme Court has long recognized that the IDEA allows parents to reject an IEP they feel is inadequate, place their child in an appropriate private school, and seеk tuition reimbursement from the school district. See Burlington, 471 U.S. at 369-70 (construing IDEA‘s authorization for courts to award “appropriate” relief); see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 242-43 (2009) (finding that amendments to the IDEA do not abrogate the Burlington decision). In order for this system to function properly, parents must have sufficient information about the IEP to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents. Under the Department‘s view, a school district could create an IEP that was materially defective, causing the parents to justifiably effect a private placement, and then defeat the parents’ reimbursement claim at a Burlington/Carter hearing with evidence that effectively amends or fixes the IEP by showing that the child would, in practice, have received the missing services. The Department‘s view is incorrect. By requiring school districts to put their efforts into creating adequate IEPs at the outset, IDEA prevents a school district from effecting this type of “bait and switch,” even if the baiting is done unintentionally. A school district cannot rehabilitate a deficient IEP after the fact.
We reject, however, a rigid “four corners” rule prohibiting testimony that goes beyond the face of the IEP. While testimony that materially alters the written plan is not permitted, testimony may be received that explains or justifies the services listed in the IEP. See D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 564-65 (3d Cir. 2010) (“[A] court should determine the appropriateness of an IEP as of the time it was made, and should use evidence acquired subsequently to the creation of an IEP only to evaluate the reasonableness of the school district‘s decisions at the time they were made.“). For example, if an IEP states that a specific teaching method will be used to instruct a student, the school district may introduce testimony at the subsequent hearing to describe that teaching method and explain why it was appropriate for the student. The district, however, may not introduce testimony that a different teaching method, not mentioned in the IEP, would have
The prospective nature of the IEP also forecloses the school district from relying on evidence that a child would have had a specific teacher or specific aide. At the time the parents must decide whether to make a unilateral placement based on the IEP, they may have no guarantee of any particular teacher. Indeed, even the Department cannot guarantee that a particular teacher or aide will not quit or become otherwise unavailable for the upcoming school year. Thus, it is error to find that a FAPE was provided because a specific teacher would have been assigned or because of actions that specific teacher would have tаken beyond what was listed in the IEP. The appropriate inquiry is into the nature of the program actually offered in the written plan.
Contrary to the Department‘s assertions, this rule does not unfairly skew the reimbursement hearing process. Parents who end up placing their children in public school cannot later use evidence that their child did not make progress under the IEP in order to show that it was deficient from the outset.3 See Scott P., 62 F.3d at 530. In determining the adequacy of an IEP, both parties are limited to discussing the placement and services specified in the written plan and therefore reasonably known to the parties at the time of the placement decision. See Fuhrmann ex rel. Fuhrmann v. E. Hanover Bd. of Educ., 993 F.2d 1031, 1039-40 (3d Cir. 1993) (“Rowley requires, at the time the initial evaluation is undertaken, an IEP need only be ‘reasonably calculated to enable the child to receive educational benefits.’ ... [T]he measure and adequacy of the IEP can only be determined as of the time it is offered to the student, not at some later date.” (quoting Rowley, 458 U.S. at 206-07)).
An important feature of the IDEA is that it contains a statutory 30-day resolution period once a “due process complaint” is filed.
Because of this resolution period, there is no danger that parents will take advantage of a school district by failing to alert it to IEP deficiencies and subsequently recover tuition based on those deficiencies. A school district that inadvertently or in good faith omits a required service from the IEP can cure that deficiency during the resolution period without penalty once it receives a due process complaint. If, however, the school district fails to rehabilitate an inadequate IEP within the resolution period, it may not later benefit from the use of retrospective evidence—that is, evidence showing that a child‘s public education would have been materially different than what was offered in the IEP. Similarly, parents are precluded in later proceedings from raising additional defects in the IEP that they should have raised from the outset, thus giving the school district a chance to cure thе defects without penalty.
Our holding today is not inconsistent with our previous holding in T.Y. v. N.Y.C. Dep‘t of Educ., 584 F.3d 412, 417-19 (2d Cir. 2009). In T.Y., after finding the IEP appropriate, the IHO and SRO amended it to include additional required services that had been omitted. We upheld this decision. The Department contends that our endorsement of a retroactive amendment to the IEP implicitly allows the use of retrospective evidence. Crucially, however, in T.Y. the IEP was never found to be defective. Thus, neither the IHO nor the SRO used retrospective evidence to remedy a defective IEP; instead they altered an adequate IEP. See id. at 417 (“[T]he IHO determined that [the lack of certain services] alone did not establish that the overall program recommended by the CSE was inappropriate.“). When an IEP adequately provides a FAPE, it is within the discretion of the IHO and SRO to amend it to include omitted services.
Accordingly, we hold that, with the exception of amendments made during the resolution period, an IEP must be evaluated prospectively as of the time it was created. Retrospective evidence that materially alters the IEP is not permissible. This rule recognizes the critical nature of the IEP as the centerpiece of the system, ensures that parents will have sufficient information on which to base a decision about unilateral placement, and puts school districts on notice that they must include all of the services they intend to provide in the written plan. If a school district makes a good faith error and omits a necessary provision, they have thirty days after the parents’ complaint to remedy the error without penalty.
II. Deference to State Decision Makers
In each of the cases before us, the IHO‘s decision was reversed on aрpeal by the SRO. The parties dispute the degree of deference that should be afforded to these two state officers. The Department contends that we should defer entirely to the SRO‘s views and give no weight to the earlier IHO‘s opinion. The parents urge that the SRO‘s opinions were not sufficiently reasoned to warrant deference and
“[T]he role of the federal courts in reviewing state educational decisions under the IDEA is circumscribed.” Gagliardo, 489 F.3d at 112-13. We must give “due weight” to the state proceedings, mindful that we lack “the specialized knowledge and experience necessary to resolve ... questions of educational policy.” Id. at 113. It is not for the federal court to “ch[oose] between the views of conflicting experts” on such questions. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 383 (2d Cir. 2003). When an IHO and SRO reach conflicting conclusions, “[w]e defer to the final deсision of the state authorities,” that is, the SRO‘s decision. A.C., 553 F.3d at 171. But the question remains: how much deference?
In a recent opinion, this Circuit resolved the deference question now posed by the parties. See M.H. v. N.Y.C. Dep‘t of Educ., 685 F.3d 217 (2d Cir. 2012). Synthesizing our precedent on this issue, we concluded that the deference owed to an SRO‘s decision depends on the quality of that opinion. Reviewing courts must look to the factors that “normally determine whether any particular judgment is persuasive, for example, whether the decision being reviewed is well-reasoned, and whether it was based on substantially greater familiarity with the evidence and the witnesses than the reviewing court.” Id. at 244. However, courts must bear in mind the statutory context and the administrative judges’ greater institutional competence in matters of educational policy. Id. The M.H. opinion offers several illustrative examples:
[D]eterminations regarding thе substantive adequacy of an IEP should be afforded more weight than determinations concerning whether the IEP was developed according to the proper procedures. Decisions involving a dispute over an appropriate educational methodology should be afforded more deference than determinations concerning whether there have been objective indications of progress. Determinations grounded in thorough and logical reasoning should be provided more deference than decisions that are not. And the district court should afford more deference when its review is based entirely on the same evidence as that before the SRO than when the district court has before it additional evidence that was not considered by the state agency.
Id. Where, as in our case, the IHO and SRO disagree, the general rule is that “courts must defer to the reasoned conclusions of the SRO as the final state administrative determination.” Id. at 246.
However, when ... the district court appropriately concludes that the SRO‘s determinations are insufficiently reasoned to merit that deference, and in particular where the SRO rejects a more thorough and carefully considered decision of an IHO, it is entirely appropriate for the court, having in its turn found the SRO‘s conclusions unpersuasive even after appropriate deference is paid, to consider the IHO‘s analysis, which is also informed by greater educational expertise than that of judges, rather than to rely exclusively on its own less informed educational judgment.
Id. Therefore, a court must defer to the SRO‘s decision on matters requiring educational expertise unless it concludes that the decision was inadequately reasoned, in which case a better-reasoned IHO opinion may be considered instead.
A. R.E. and M.E., No. 11-1266-cv
The parents of J.E. allege that the IEP was substantively deficient because their child required 1:1 teacher support and the IEP offered only 1:1 support by a paraprofessional aide. They further allege procedural violations because the Department failed to conduct an adequate FBA and did not include parent counseling in the IEP. The district court agreed with the IHO that there had been a substantive violation. It rejected the SRO‘s conclusion that 1:1 paraprofessional support would be sufficient, saying that such a conclusion lacked evidentiary support and ignored uncontradicted evidence that J.E. needed 1:1 teacher support. R.E., 785 F.Supp.2d at 42. We disagree.
1. Substantive Adequacy
The SRO relied heavily on retrospective testimony by Peter De Nuovo, who would have been J.E.‘s teacher if he had accepted the Department‘s placement. The SRO cited specific classroom techniques that De Nuovo used, and noted that if J.E. required more 1:1 instruction than his paraprofessional provided, De Nuovo would have provided it. The SRO‘s reliance on De Nuovo‘s testimony was inappropriate. At the time the parents made their placement decision, they had no way of knowing, much less a guarantee, that J.E. would be taught by De Nuovo as opposed to a different teacher who did not provide additional 1:1 instruction and did not use the same classroom techniques. The IEP provided for a 6:1:1 classroom with a dedicated aide and must be evaluated on that basis.
Despite his reliance on improper testimony, the SRO also based his decision on an appropriate finding: he found no evidence in the record that J.E. actually required 1:1 teacher support, as opposed to 1:1 support by a dedicated aide, to make educational progress. Similarly, although J.E. had been taught previously with ABA, the SRO found no evidence that he could not make progress with another methodology and 1:1 paraprofessional support. In so finding, the SRO reversed the IHO‘s conclusion, based on the same evidence, that J.E. required 1:1 teacher support. The adequacy of 1:1 paraprofessional support as opposed to 1:1 teacher support is precisely the kind of educational policy judgment to which we owe the state deference if it is supported by sufficient evidence, as is the case here. Because we find this portion of the SRO‘s decision to be adequately reasoned, we owe it deference as the final decision of the state. We therefore find that the IEP was substantively adequate to provide J.E. with a FAPE.
2. Procedural Violations
J.E.‘s parents also allege that the Department‘s failure to conduct an adequate FBA and to provide for parent counseling in the IEP deprived J.E. of a FAPE. With regard to the FBA, the SRO found that the IEP contained adequate strategies to address J.E.‘s problem behaviors. He cited the use of “a visual schedule, verbal support, redirection, prompting, positive reinforcement, and the provision of a 1:1 paraprofessional to target the student‘s scripting, fleeing, and anxiety behaviors,” as well as the use of a token economy and a consistent routine. SRO Opinion at 20, J.A. 757. The SRO also relied, however, on retrospective testimony from De Nuovo as to how he would have developed a BIP and how he would have specifically addressed certain behaviors. This retrospective testimony must be disregarded. In spite of this error, however, we conclude that the failure to create an adequate FBA did not amount to a denial of a FAPE. We note that, although they did not meet state-imposed criteria, an FBA and BIP were created. In addition, the McCarton reports reviewed by the CSE contained unusually extensive documentation of J.E.‘s behaviors, and the IEP included numerous specific strategies to address those behaviors, including the use of a 1:1 aide to help him focus. The SRO‘s reliance on the foregoing information was permissible and is entitled to deference.
The SRO‘s reliance on retrospective testimony that parent training would have been offered at J.E.‘s placement was inappropriate. However, we conclude that the failure to include parent training in the IEP did not rise to the level of a denial of a FAPE, even when considered cumulatively with the deficiencies in the FBA.
We have reviewed J.E.‘s parents’ other claims and find that they have not demonstrated that J.E. was denied a FAPE for the 2008-09 school year. Accordingly, the judgment of the district court is reversed.
We reiterate our principal holding that courts must evaluate the adequacy of an IEP prospectively as of the time of the parents’ placement decision and may not consider “retrospective testimony” regarding services not listed in the IEP. However, we reject a rigid “four-corners rule” that would prevent a court from considering evidence explicating the written terms of the IEP.
In light of this holding, and for the other reasons stated above, we AFFIRM the judgment of the district court in R.K. v. N.Y.C. Dep‘t of Educ., No. 11-1474-cv and E.Z.L. v. N.Y.C. Dep‘t of Educ., No. 11-655-cv, and REVERSE the judgment of the district court in R.E. v. N.Y.C. Dep‘t of Educ., No. 11-1266-cv.