Mackey v. Board of Education for Arlington Central School District

373 F. Supp. 2d 292, 2005 U.S. Dist. LEXIS 12081
CourtDistrict Court, S.D. New York
DecidedMarch 9, 2005
DocketNo. 03 CIV.5607(CM)(LMS)
StatusPublished
Cited by3 cases

This text of 373 F. Supp. 2d 292 (Mackey v. Board of Education for Arlington Central School District) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mackey v. Board of Education for Arlington Central School District, 373 F. Supp. 2d 292, 2005 U.S. Dist. LEXIS 12081 (S.D.N.Y. 2005).

Opinion

DECISION DISPOSING OF THE PARTIES’ CROSS MOTIONS FOR SUMMARY JUDGMENT

MCMAHON, District Judge.

At issue on these cross motions for summary judgment under the Individuals with Disabilities in Education Act (IDEA) is the last in a series of disputes between the Mackey family and the Arlington Central School District concerning the education of T.M., the Mackeys’ disabled son. The parents seek a determination that the District is responsible for the cost of. educating their son at Old Forge Center of Lynn University for the 2001-2002 school year. The District seeks a determination that it is not liable for T.M.’s tuition at Old Forge.

I conclude that there is no basis to overturn the State Review Officer’s determination concerning the adequacy of the District’s IEP for T.M. for the 2001-2002 school year. There is, therefore, no basis to reimburse the parents for their unilateral placement of T.M. at Old Forge other than pendency.

Unfortunately for the Mackeys, I am constrained to conclude that the issue of pendency is not properly before me in this action, because they did not file a timely appeal from the SRO’s final determination that Old Forge was not T.M.’s proper pen-dency placement. Through a strange quirk, however, the pendency issue is before the Court in the companion case filed under Docket No. 02 Civ. 8360, a case that otherwise deals with the 2000-2001 school year (and that is still alive only because it has been remanded to this court to deal with one small item). The pendency issue will be addressed on the merits in a decision filed simultaneously herewith in that action, which is before the Court on remand from the United States Court of Appeals for the Second Circuit.

For ease of reference: The decision on remand from the Second Circuit will be referred to as Mackey TV. This decision is Mackey V. The Second Circuit’s decision is Mackey III. The decision of this court that was affirmed in part and reversed in part by Mackey III is Mackey II. Judge Brieant’s decision on the earliest of the disputes between the Mackeys and the Arlington Central School District is Mack-ey I.

Factual Background

For the factual background concerning T.M.’s education in the years 1999-2000 and 2000-2001, the reader is referred to the Second Circuit’s decision in Mackey v. Board of Education for the Arlington Central School District, 386 F.3d 158 (2d Cir.2004) (Mackey III). Further to that decision, this Court has now determined that the State Review Officer who was handling the Mackeys’ appeal from an IHO decision upholding the school’s contention that it could provide a fair and appropriate public education for T.M. in the public school setting during the 1999-2000 school year should have reached his decision overturn[295]*295ing the IHO by December 9, 2000. See Mackey v. Board of Education for the Arlington Central School District, No. 02 Civ. 8360(CM) (March 9, 2005) (Mackey IV).

We now turn to the 2001-2002 year. As had been true the previous two years, the District prepared an IEP and determined that T.M. should participate in three academic special classes (global studies, math and English), two special classes for life skills, and two periods of community-based work study programs. Schiro Aff. ¶ 33 and attached exhibits. The Mackeys again rejected the District’s recommended program, for essentially the same reasons they had rejected the program for 2000-2001.

However, the Mackeys did not plan to send their son to Maplebrook for the 2001-2002 school year, either. The parents decided — again unilaterally — to place T.M. in the Enrichment Program at the Old Forge Center of Lynn University. The Mackeys notified the District of their decision on September 5, 2001, and simultaneously demanded an impartial hearing so that they could secure tuition reimbursement for this placement.

Old Forge, like Maplebrook, has not been approved by the New York State Education Department to instruct students with disabilities.

The Mackeys asked for an impartial hearing at the same time they rejected the IEP. On October 20, 2001, fifty-five days after they made their request, the District appointed Kenneth L. Steward from the State’s rotational list to serve as the impartial hearing officer in connection with the dispute over T.M’s placement for the 2001-2002 year. Within days of that appointment, on November 9, 2001, the SRO ruled against the District for the 1999-2000 school year (which led to the filing of a complaint and Judge Brieant’s opinion in Mackey I).

Shortly after the IHO was appointed, the parents moved for a declaration that Old Forge, a different private school but a private school nonetheless, was T.M’s “stay put” placement for the 2001-2002 academic year. They also sought a declaration that the District was responsible to cover the cost of the parents’ unilateral private placement in “private school” under the pendency rules.

The hearing on the issue of pendency took place on January 16, 2002, the date having been chosen because it was the first acceptable date on which the parents’ representative could be present. Only three weeks later, on February 8, 2002, the IHO rendered a decision against the parents. He concluded that he did not need to address the broader issue of whether the decision in Mackey I made the District responsible, on a pendency basis, for any and all private school placements because, on the record before him, Old Forge was not similar enough to Maplebrook to qualify as a placement “similar” to Maplebrook. The differences he cited between Maple-brook and Old Forge were that Old Forge was a residential placement (T.M. lived at the school rather than at home) while Ma-plebrook had not been residential, and that Old Forge placed T.M. at a local hardware store, in a work assignment with no direct continuous educational component, unlike Maplebrook. (Schiro Aff. Ex. K).

The IHO stated that the cost of Maple-brook was the “... .principal reason for the change of location for T’s schooling.” (Ex. K at second decisional page). In the instant proceeding’s Rule 56.1 statement filed by plaintiffs (which is patently defective for failing to include a single citation to the record, perhaps because the record of proceedings relevant to this year was not filed under this docket number, but was filed as part of the record in the case relating to the 2000-2001 year), the plain[296]*296tiffs assert that T.M. could no longer attend Maplebrook because he had aged out of its high school program and the school would not create a special program just for him. The IHO’s decision makes no reference whatever to T.M.’s inability to attend Maplebrook because he had allegedly aged out of its program.

The Mackeys appealed this interim decision to the SRO on March 26, 2002, pursuant to 8 NYCRR § 279.8(c), which authorizes immediate review of interim IHO decisions involving pendency placements. (The record does not reveal why it took the parents so long to lodge their appeal, but it is fairly typical of their actions). The SRO’s decision was due thirty days later, but he did not affirm the IHO’s pendency determination until December 13, 2002 (Schiro Aff. Ex. L).1

In his comprehensive (if unduly delayed) decision, the SRO noted approvingly the Mackeys’ argument that pendency “...

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MacKey v. BD. OF EDUC. FOR ARLINGTON CEN. SCHOOL
373 F. Supp. 2d 292 (S.D. New York, 2005)

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Bluebook (online)
373 F. Supp. 2d 292, 2005 U.S. Dist. LEXIS 12081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mackey-v-board-of-education-for-arlington-central-school-district-nysd-2005.