25-54-cv Erde v. Carranza
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 26th day of November, two thousand twenty-five.
PRESENT: AMALYA L. KEARSE, REENA RAGGI, RAYMOND J. LOHIER, JR., Circuit Judges. ------------------------------------------------------------------ SUSANNE ERDE AND MICHAEL ERDE, AS PARENTS AND NATURAL GUARDIANS OF J.E., AND SUSANNE ERDE AND MICHAEL ERDE, INDIVIDUALLY,
Plaintiffs-Appellants,
v. No. 25-54-cv
RICHARD CARRANZA, IN HIS OFFICIAL CAPACITY AS CHANCELLOR OF THE NEW YORK CITY DEPARTMENT OF EDUCATION, NEW YORK CITY DEPARTMENT OF EDUCATION,
1 AND NEW YORK STATE EDUCATION DEPARTMENT,
Defendants-Appellees. * ------------------------------------------------------------------
FOR APPELLANTS: RORY J. BELLANTONI, Liberty & Freedom Legal Group, New York, NY
FOR APPELLEES: D. ALAN ROSINUS, JR. (Richard Dearing, Melanie T. West, on the brief), Of Counsel, for Muriel Goode-Trufant, Corporation Counsel of the City of New York, New York, NY
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Frederic Block, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.
Plaintiffs-Appellants Susanne and Michael Erde, individually and on
behalf of their child J.E., appeal from the December 6, 2024 judgment of the
United States District Court for the Eastern District of New York (Block, J.)
granting summary judgment in favor of the Defendants-Appellees and
* The Clerk of Court is directed to amend the caption as set forth above. 2 dismissing the Erdes’ claims under the Individuals with Disabilities Education
Act (IDEA), 20 U.S.C. §§ 1400 et seq. We assume the parties’ familiarity with the
underlying facts and the record of prior proceedings, to which we refer only as
necessary to explain our decision to affirm.
An Impartial Hearing Officer (“IHO”) concluded that J.E., who has been
diagnosed with cerebral palsy and several other significant medical conditions,
had been denied a free appropriate public education (“FAPE”) because the
Department of Education (“DOE”) recommended in its Individualized Education
Program (“IEP”) for the 2018–19 school year that a transportation
paraprofessional rather than a transportation nurse accompany J.E. in transit.
The State Review Officer (“SRO”) reversed this part of the decision of the IHO
after concluding that the Erdes had forfeited the argument that the IEP was
defective for failing to provide for a transportation nurse and that the DOE had
not otherwise denied J.E. a FAPE. The District Court upheld the SRO’s decision
and granted the DOE’s motion for summary judgment.
“We undergo a circumscribed de novo review of a district court’s grant of
summary judgment in the IDEA context because the ‘responsibility for
determining whether a challenged IEP will provide a child with [a FAPE] rests in
3 the first instance with administrative hearing and review officers.’” M.W. ex rel.
S.W. v. N.Y.C. Dep't of Educ., 725 F.3d 131, 138 (2d Cir. 2013) (alteration in
original) (quoting M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 240 (2d Cir. 2012)).
“In undertaking this independent review, we are . . . restrained by our lack of
specialized knowledge and educational expertise,” which requires that we “defer
to the administrative decision particularly where the state officer’s review has
been thorough and careful.” Id. at 138–39 (alteration accepted and quotation
marks omitted). Our review thus seeks only to “independently verify that the
administrative record supports the district court’s determination.” Id. at 138. We
consider the Erdes’ appeal with these principles in mind.
Assuming without deciding that we apply de novo review to decide the
question, we agree with the SRO that the Erdes forfeited their claim that the IEP
was defective for failing to provide J.E. with a transportation nurse. Unless the
other party consents, parties requesting a hearing may not there raise challenges
to the IEP that they did not include in their due process complaint. See 20 U.S.C.
§ 1415(f)(3)(B); R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 187 & n.4 (2d Cir. 2012).
Here, none of the seven detailed claims in the due process complaint concerned
or mentioned J.E.’s transportation accommodations. To the contrary, the
4 complaint requested only that the DOE cover the cost of a “travel aide,” rather
than provide a transportation nurse. D. Ct. Dkt. No. 44-2 at 48. The Erdes point
out that the due process complaint sought an interim order of pendency that
would have had the DOE cover the cost of J.E.’s then-current transportation
accommodations, including a “nurse.” D. Ct. Doc. No. 44-2 at 47. But
considered in the context of the due process complaint as a whole, the pendency
request does not suggest that the Erdes contested the provision of a
transportation paraprofessional instead of a nurse. Accordingly, while “the
waiver rule is not to be mechanically applied,” the pendency request did not
“provide[] fair notice to the Department” of such a challenge. C.F. ex rel. R.F. v.
N.Y.C. Dep’t of Educ., 746 F.3d 68, 78 (2d Cir. 2014).
The Erdes alternatively contend that the DOE opened the door to the
transportation nurse issue at the impartial hearing conducted by the IHO, thus
allowing them to raise it. We are not persuaded. The DOE did not raise issues
outside the scope of the Erdes’ due process complaint when it mentioned
transportation in two questions that formed part of a summary of the IEP’s
overall program recommendation. We contrast this case with M.H. v. New York
City Department of Education, in which we concluded that the DOE opened the
5 door to an issue by referencing it “first in its opening statement, and then in the
questioning of its first witness,” and “much of the testimony presented by both
parties to the IHO related to the [issue].” 685 F.3d at 250.
The Erdes also argue that J.E. was denied a FAPE because the IEP
provided for 40–minute rather than 60–minute related-services sessions. We
disagree. “[A] school district fulfills its substantive obligations under the IDEA if
it provides an IEP that is likely to produce progress, not regression, and if the IEP
Free access — add to your briefcase to read the full text and ask questions with AI
25-54-cv Erde v. Carranza
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 26th day of November, two thousand twenty-five.
PRESENT: AMALYA L. KEARSE, REENA RAGGI, RAYMOND J. LOHIER, JR., Circuit Judges. ------------------------------------------------------------------ SUSANNE ERDE AND MICHAEL ERDE, AS PARENTS AND NATURAL GUARDIANS OF J.E., AND SUSANNE ERDE AND MICHAEL ERDE, INDIVIDUALLY,
Plaintiffs-Appellants,
v. No. 25-54-cv
RICHARD CARRANZA, IN HIS OFFICIAL CAPACITY AS CHANCELLOR OF THE NEW YORK CITY DEPARTMENT OF EDUCATION, NEW YORK CITY DEPARTMENT OF EDUCATION,
1 AND NEW YORK STATE EDUCATION DEPARTMENT,
Defendants-Appellees. * ------------------------------------------------------------------
FOR APPELLANTS: RORY J. BELLANTONI, Liberty & Freedom Legal Group, New York, NY
FOR APPELLEES: D. ALAN ROSINUS, JR. (Richard Dearing, Melanie T. West, on the brief), Of Counsel, for Muriel Goode-Trufant, Corporation Counsel of the City of New York, New York, NY
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Frederic Block, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.
Plaintiffs-Appellants Susanne and Michael Erde, individually and on
behalf of their child J.E., appeal from the December 6, 2024 judgment of the
United States District Court for the Eastern District of New York (Block, J.)
granting summary judgment in favor of the Defendants-Appellees and
* The Clerk of Court is directed to amend the caption as set forth above. 2 dismissing the Erdes’ claims under the Individuals with Disabilities Education
Act (IDEA), 20 U.S.C. §§ 1400 et seq. We assume the parties’ familiarity with the
underlying facts and the record of prior proceedings, to which we refer only as
necessary to explain our decision to affirm.
An Impartial Hearing Officer (“IHO”) concluded that J.E., who has been
diagnosed with cerebral palsy and several other significant medical conditions,
had been denied a free appropriate public education (“FAPE”) because the
Department of Education (“DOE”) recommended in its Individualized Education
Program (“IEP”) for the 2018–19 school year that a transportation
paraprofessional rather than a transportation nurse accompany J.E. in transit.
The State Review Officer (“SRO”) reversed this part of the decision of the IHO
after concluding that the Erdes had forfeited the argument that the IEP was
defective for failing to provide for a transportation nurse and that the DOE had
not otherwise denied J.E. a FAPE. The District Court upheld the SRO’s decision
and granted the DOE’s motion for summary judgment.
“We undergo a circumscribed de novo review of a district court’s grant of
summary judgment in the IDEA context because the ‘responsibility for
determining whether a challenged IEP will provide a child with [a FAPE] rests in
3 the first instance with administrative hearing and review officers.’” M.W. ex rel.
S.W. v. N.Y.C. Dep't of Educ., 725 F.3d 131, 138 (2d Cir. 2013) (alteration in
original) (quoting M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 240 (2d Cir. 2012)).
“In undertaking this independent review, we are . . . restrained by our lack of
specialized knowledge and educational expertise,” which requires that we “defer
to the administrative decision particularly where the state officer’s review has
been thorough and careful.” Id. at 138–39 (alteration accepted and quotation
marks omitted). Our review thus seeks only to “independently verify that the
administrative record supports the district court’s determination.” Id. at 138. We
consider the Erdes’ appeal with these principles in mind.
Assuming without deciding that we apply de novo review to decide the
question, we agree with the SRO that the Erdes forfeited their claim that the IEP
was defective for failing to provide J.E. with a transportation nurse. Unless the
other party consents, parties requesting a hearing may not there raise challenges
to the IEP that they did not include in their due process complaint. See 20 U.S.C.
§ 1415(f)(3)(B); R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 187 & n.4 (2d Cir. 2012).
Here, none of the seven detailed claims in the due process complaint concerned
or mentioned J.E.’s transportation accommodations. To the contrary, the
4 complaint requested only that the DOE cover the cost of a “travel aide,” rather
than provide a transportation nurse. D. Ct. Dkt. No. 44-2 at 48. The Erdes point
out that the due process complaint sought an interim order of pendency that
would have had the DOE cover the cost of J.E.’s then-current transportation
accommodations, including a “nurse.” D. Ct. Doc. No. 44-2 at 47. But
considered in the context of the due process complaint as a whole, the pendency
request does not suggest that the Erdes contested the provision of a
transportation paraprofessional instead of a nurse. Accordingly, while “the
waiver rule is not to be mechanically applied,” the pendency request did not
“provide[] fair notice to the Department” of such a challenge. C.F. ex rel. R.F. v.
N.Y.C. Dep’t of Educ., 746 F.3d 68, 78 (2d Cir. 2014).
The Erdes alternatively contend that the DOE opened the door to the
transportation nurse issue at the impartial hearing conducted by the IHO, thus
allowing them to raise it. We are not persuaded. The DOE did not raise issues
outside the scope of the Erdes’ due process complaint when it mentioned
transportation in two questions that formed part of a summary of the IEP’s
overall program recommendation. We contrast this case with M.H. v. New York
City Department of Education, in which we concluded that the DOE opened the
5 door to an issue by referencing it “first in its opening statement, and then in the
questioning of its first witness,” and “much of the testimony presented by both
parties to the IHO related to the [issue].” 685 F.3d at 250.
The Erdes also argue that J.E. was denied a FAPE because the IEP
provided for 40–minute rather than 60–minute related-services sessions. We
disagree. “[A] school district fulfills its substantive obligations under the IDEA if
it provides an IEP that is likely to produce progress, not regression, and if the IEP
affords the student with an opportunity greater than mere trivial advancement.”
A.C. ex rel. M.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 173
(2d Cir. 2009) (alteration in original) (quotation marks omitted). Following an
extended review of the record, the SRO found that “the student’s distractibility
and limited attention to tasks,” “supports [the] conclusion that the 40-minute
sessions . . . were appropriate.” D. Ct. Dkt. No. 44-2 at 33. As already noted, we
defer to the SRO’s reasoning, “particularly . . . when, as here, the state hearing
officers’ review has been thorough and careful.” Walczak v. Fla. Union Free Sch.
Dist., 142 F.3d 119, 129 (2d Cir. 1998).
The Erdes next argue that J.E. was denied a FAPE because his IDEA
disability classification was improperly changed from “traumatic brain injury” to
6 “multiple disabilities.” Appellants’ Br. 32–35. We agree with the District Court
that a “student’s disability classification is generally immaterial in determining
whether a FAPE was provided if the IEP otherwise sufficiently met the needs of
the disabled student.” Erde v. Carranza, No. 20-CV-02181, 2024 WL 4989225, at *4
(E.D.N.Y. Dec. 5, 2024) (quotation marks omitted). As the SRO recognized,
because J.E.’s “eligibility for special education is not in dispute, the significance
of the disability category label is more relevant to . . . reporting requirements
than it is to determine an appropriate IEP.” D. Ct. Dkt. No. 44-2 at 24–25.
The Erdes also allege certain procedural violations. First, they argue that
the DOE predetermined J.E.’s placement by holding the IEP meeting for the
2018–19 school year without them. The DOE may conduct an IEP meeting
without the parents if the DOE has “take[n] steps to ensure that one or both of
the parents . . . are afforded the opportunity to participate” at the meeting and
the DOE “is unable to convince the parents that they should attend.” 34 C.F.R.
§§ 300.322(a), (d). Here, the SRO determined, the DOE accommodated the Erdes’
request to meet on a weekday after 3 p.m., granted their request that staff from
J.E.’s then-current private placement be permitted to attend, provided them with
three weeks’ notice of the meeting, and sent them several reminders. On the day
7 of the meeting, the DOE again contacted J.E.’s father and the staff of J.E.’s then-
current private placement to seek their attendance. In light of this record, we
agree with the District Court that the SRO correctly ruled that the DOE satisfied
its regulatory obligation.
Finally, the Erdes argue that the IEP meeting was not properly constituted
because the DOE physician attended over the phone. Again, we are not
persuaded. It is true that New York law gives parents a “right to request . . . the
attendance of the school physician member” at IEP meetings. N.Y. Comp. Codes
R. & Regs. tit. 8, § 200.5(c)(2)(iv). But under the circumstances presented here,
especially where the parents insist that a physician be present at the in-person
meetings but then fail to attend themselves, we agree with the District Court that
the IEP meeting was not procedurally defective.
We have considered the Erdes’ remaining arguments and conclude that
they are without merit. For the foregoing reasons, the judgment of the District
Court is AFFIRMED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court