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Opinion
10-2181-cv, 10-2418-cv M.H. & E.K. o/b/o P.H.; M.S. & L.S. o/b/o of D.S. v. NYC Dep’t of Education
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 August Term, 2010
4 (Argued: April 25, 2011 Decided: June 29, 2012)
5 -------------------------------------
6 M.H. AND E.K. individually and collectively on behalf of P.H.,
7 Plaintiffs-Appellees,
8 - v - Docket No. 10-2181
9 New York City Department of Education,
10 Defendant-Appellant.
11 -------------------------------------
12 M.S. individually, M.S., collectively and on behalf of D.S., 13 L.S., individually, L.S., collectively and on behalf of D.S.,
14 Plaintiffs-Appellants,
15 - v - Docket No. 10-2418 16 17 New York City Department of Education,
18 Defendant-Appellee.
19 -------------------------------------
20 Before: SACK, LIVINGSTON, and LYNCH, Circuit Judges.
21 Appeals from opinions and orders in two different cases
22 decided in the United States District Court for the Southern
23 District of New York (Loretta A. Preska, Chief Judge, and Lewis
24 A. Kaplan, Judge, respectively), granting, in M.H., the 1 plaintiffs' motion for summary judgment and, in M.S., the New
2 York City Department of Education's motion for summary judgment.
3 The plaintiffs in both cases are the parents of disabled children
4 who challenged the procedural and substantive adequacy of the
5 Individualized Education Plans that the defendant, New York City
6 Department of Education, had developed for the plaintiffs'
7 children pursuant to the Individuals with Disabilities Education
8 Act, 20 U.S.C. § 1400 et seq. The plaintiffs also sought
9 reimbursement of funds spent on private-school tuition for their
10 children.
11 In M.H., we conclude that the district court properly
12 agreed with the determinations of the Impartial Hearing Officer
13 who initially considered the matter in the State's administrative
14 scheme, and properly rejected the subsequent determinations of
15 the State Review Officer. In M.S., although we conclude that the
16 magistrate judge -- who recommended granting the Department's
17 motion for summary judgment -- overstated the extent to which
18 federal courts must defer to the findings of state administrative
19 officers, we conclude that the Department's motion was properly
20 granted.
21 Affirmed.
22 JULIE STEINER (G. Christopher Harriss, 23 Stephen J. McGrath, Andrew Rauchberg, of 24 counsel, on the brief), on behalf of 25 Michael A. Cardozo, Corporation Counsel 26 of the City of New York, New York, New
2 1 York, for Defendant-Appellant New York 2 City Department of Education. 3 4 JESSE COLE CUTLER (Samantha Bernstein, 5 on the brief), Skyer and Associates, 6 L.L.P., New York, New York, for 7 Plaintiffs-Appellees M.H. and E.K on 8 behalf of P.H.; for Plaintiffs- 9 Appellants M.S. and L.S. individually 10 and collectively on behalf of D.S..
11 SACK, Circuit Judge:
12 BACKGROUND
13 Both of these appeals, which we heard in tandem,
14 concern the proper interpretation of the Individuals with
15 Disabilities Education Act ("IDEA"),1 20 U.S.C. § 1400 et seq.
16 They each involve unique facts which must therefore be set out in
17 considerable detail in order to address the legal issues they
1 Glossary of Acronyms: This opinion, dealing as it does with the IDEA and practices thereunder, is replete with acronyms. In addition to their definition in the text, a separate glossary of acronyms is therefore set forth in the Appendix to this opinion. Cf. Nat'l Assoc. of Regulatory Util. Comm'rs v. U.S. Dep't of Energy, Nos. 11-1066, 11-1068, --- F.3d ---, 2012 WL 1957942, at *6, n.1, 2012 U.S. App. LEXIS 11044, at *3, n.1 (D.C. Cir. June 1, 2012) (Silberman, J.) (referring to court's Handbook of Practice and Internal Procedures' statement that "'parties are strongly urged to limit the use of acronyms' and 'should avoid using acronyms that are not widely known.'" "Brief-writing, no less than 'written English, is full of bad habits which spread by imitation and which can be avoided if one is willing to take the necessary trouble.' George Orwell, 'Politics and the English Language,' 13 Horizon 76 (1946). Here, both parties abandoned any attempt to write in plain English, instead abbreviating every conceivable agency and statute involved, familiar or not . . . .").
3 1 raise.2 The cases both require us to address the manner in which
2 the federal courts must go about their IDEA-mandated review of
3 state administrative decisions.
4 The IDEA
5 Congress enacted the IDEA "to ensure that all children
6 with disabilities have available to them a free appropriate
7 public education . . . designed to meet their unique needs . . .
8 [and] to ensure that the rights of children with disabilities and
9 parents of such children are protected." 20 U.S.C.
10 § 1400(d)(1)(A)-(B); see also Forest Grove Sch. Dist. v. T.A.,
11 557 U.S. 230, 247 (2009) (concluding that a court could award
12 private-school-tuition reimbursement to the parents of disabled
13 children not provided a "Free Appropriate Public Education").
14 "The IDEA offers federal funds to states that develop plans to
15 assure 'all children with disabilities' [residing in each such
16 state] a 'free appropriate public education,' 20 U.S.C.
17 § 1412(a)(1)(A)." Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d
18 377, 379 (2d Cir. 2003).
2 Factual complexity is not an unusual feature of IDEA appeals. See, e.g., Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 123-29 (2d Cir. 1998) (describing the complex factual history of a case involving a child challenging an IEP who had been diagnosed with, among other things, "Minimal Brain Dysfunction syndrome with an attention deficit disorder and hyperactivity, developmental language disorder, a mild to moderate separation anxiety disorder, and obsessive compulsive disorder, and Tourette's Syndrome .").
4 1 "To meet [the IDEA's] requirements, a school district's
2 program must provide 'special education and related services[,]'
3 [20 U.S.C. § 1401(9)], tailored to meet the unique needs of a
4 particular child, and be reasonably calculated to enable the
5 child to receive educational benefits." Gagliardo v. Arlington
6 Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007) (some internal
7 quotation marks omitted); see also Grim, 346 F.3d at 379
8 (similar). These services "must be administered according to an
9 'individualized education program' . . . , which school districts
10 must implement each year for each student with a disability."
11 Id. (quoting 20 U.S.C. § 1414(d)).
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10-2181-cv, 10-2418-cv M.H. & E.K. o/b/o P.H.; M.S. & L.S. o/b/o of D.S. v. NYC Dep’t of Education
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 August Term, 2010
4 (Argued: April 25, 2011 Decided: June 29, 2012)
5 -------------------------------------
6 M.H. AND E.K. individually and collectively on behalf of P.H.,
7 Plaintiffs-Appellees,
8 - v - Docket No. 10-2181
9 New York City Department of Education,
10 Defendant-Appellant.
11 -------------------------------------
12 M.S. individually, M.S., collectively and on behalf of D.S., 13 L.S., individually, L.S., collectively and on behalf of D.S.,
14 Plaintiffs-Appellants,
15 - v - Docket No. 10-2418 16 17 New York City Department of Education,
18 Defendant-Appellee.
19 -------------------------------------
20 Before: SACK, LIVINGSTON, and LYNCH, Circuit Judges.
21 Appeals from opinions and orders in two different cases
22 decided in the United States District Court for the Southern
23 District of New York (Loretta A. Preska, Chief Judge, and Lewis
24 A. Kaplan, Judge, respectively), granting, in M.H., the 1 plaintiffs' motion for summary judgment and, in M.S., the New
2 York City Department of Education's motion for summary judgment.
3 The plaintiffs in both cases are the parents of disabled children
4 who challenged the procedural and substantive adequacy of the
5 Individualized Education Plans that the defendant, New York City
6 Department of Education, had developed for the plaintiffs'
7 children pursuant to the Individuals with Disabilities Education
8 Act, 20 U.S.C. § 1400 et seq. The plaintiffs also sought
9 reimbursement of funds spent on private-school tuition for their
10 children.
11 In M.H., we conclude that the district court properly
12 agreed with the determinations of the Impartial Hearing Officer
13 who initially considered the matter in the State's administrative
14 scheme, and properly rejected the subsequent determinations of
15 the State Review Officer. In M.S., although we conclude that the
16 magistrate judge -- who recommended granting the Department's
17 motion for summary judgment -- overstated the extent to which
18 federal courts must defer to the findings of state administrative
19 officers, we conclude that the Department's motion was properly
20 granted.
21 Affirmed.
22 JULIE STEINER (G. Christopher Harriss, 23 Stephen J. McGrath, Andrew Rauchberg, of 24 counsel, on the brief), on behalf of 25 Michael A. Cardozo, Corporation Counsel 26 of the City of New York, New York, New
2 1 York, for Defendant-Appellant New York 2 City Department of Education. 3 4 JESSE COLE CUTLER (Samantha Bernstein, 5 on the brief), Skyer and Associates, 6 L.L.P., New York, New York, for 7 Plaintiffs-Appellees M.H. and E.K on 8 behalf of P.H.; for Plaintiffs- 9 Appellants M.S. and L.S. individually 10 and collectively on behalf of D.S..
11 SACK, Circuit Judge:
12 BACKGROUND
13 Both of these appeals, which we heard in tandem,
14 concern the proper interpretation of the Individuals with
15 Disabilities Education Act ("IDEA"),1 20 U.S.C. § 1400 et seq.
16 They each involve unique facts which must therefore be set out in
17 considerable detail in order to address the legal issues they
1 Glossary of Acronyms: This opinion, dealing as it does with the IDEA and practices thereunder, is replete with acronyms. In addition to their definition in the text, a separate glossary of acronyms is therefore set forth in the Appendix to this opinion. Cf. Nat'l Assoc. of Regulatory Util. Comm'rs v. U.S. Dep't of Energy, Nos. 11-1066, 11-1068, --- F.3d ---, 2012 WL 1957942, at *6, n.1, 2012 U.S. App. LEXIS 11044, at *3, n.1 (D.C. Cir. June 1, 2012) (Silberman, J.) (referring to court's Handbook of Practice and Internal Procedures' statement that "'parties are strongly urged to limit the use of acronyms' and 'should avoid using acronyms that are not widely known.'" "Brief-writing, no less than 'written English, is full of bad habits which spread by imitation and which can be avoided if one is willing to take the necessary trouble.' George Orwell, 'Politics and the English Language,' 13 Horizon 76 (1946). Here, both parties abandoned any attempt to write in plain English, instead abbreviating every conceivable agency and statute involved, familiar or not . . . .").
3 1 raise.2 The cases both require us to address the manner in which
2 the federal courts must go about their IDEA-mandated review of
3 state administrative decisions.
4 The IDEA
5 Congress enacted the IDEA "to ensure that all children
6 with disabilities have available to them a free appropriate
7 public education . . . designed to meet their unique needs . . .
8 [and] to ensure that the rights of children with disabilities and
9 parents of such children are protected." 20 U.S.C.
10 § 1400(d)(1)(A)-(B); see also Forest Grove Sch. Dist. v. T.A.,
11 557 U.S. 230, 247 (2009) (concluding that a court could award
12 private-school-tuition reimbursement to the parents of disabled
13 children not provided a "Free Appropriate Public Education").
14 "The IDEA offers federal funds to states that develop plans to
15 assure 'all children with disabilities' [residing in each such
16 state] a 'free appropriate public education,' 20 U.S.C.
17 § 1412(a)(1)(A)." Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d
18 377, 379 (2d Cir. 2003).
2 Factual complexity is not an unusual feature of IDEA appeals. See, e.g., Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 123-29 (2d Cir. 1998) (describing the complex factual history of a case involving a child challenging an IEP who had been diagnosed with, among other things, "Minimal Brain Dysfunction syndrome with an attention deficit disorder and hyperactivity, developmental language disorder, a mild to moderate separation anxiety disorder, and obsessive compulsive disorder, and Tourette's Syndrome .").
4 1 "To meet [the IDEA's] requirements, a school district's
2 program must provide 'special education and related services[,]'
3 [20 U.S.C. § 1401(9)], tailored to meet the unique needs of a
4 particular child, and be reasonably calculated to enable the
5 child to receive educational benefits." Gagliardo v. Arlington
6 Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007) (some internal
7 quotation marks omitted); see also Grim, 346 F.3d at 379
8 (similar). These services "must be administered according to an
9 'individualized education program' . . . , which school districts
10 must implement each year for each student with a disability."
11 Id. (quoting 20 U.S.C. § 1414(d)).
12 An individualized education program ("IEP") is "a
13 written statement that 'sets out the child's present educational
14 performance, establishes annual and short-term objectives for
15 improvements in that performance, and describes the specially
16 designed instruction and services that will enable the child to
17 meet those objectives.'" D.D. ex rel. V.D. v. N.Y.C. Bd. of
18 Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (quoting Honig v. Doe,
19 484 U.S. 305, 311 (1988)), amended on other grounds, 480 F.3d 138
20 (2d Cir. 2007). Under the IDEA, for a child's IEP to be
21 adequate, it must be "[']likely to produce progress, not
22 regression, and [must] . . . afford[] the student with an
23 opportunity greater than mere trivial advancement.'" T.P. ex
24 rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254
5 1 (2d Cir. 2009) (quoting Cerra v. Pawling Cent. Sch. Dist., 427
2 F.3d 186, 195 (2d Cir. 2005)). However, it need "not . . .
3 furnish every special service necessary to maximize each
4 handicapped child's potential." Grim, 346 F.3d at 379 (quoting
5 Bd. of Educ. v. Rowley, 458 U.S. 176, 199 (1982)) (brackets,
6 ellipsis, and internal quotation marks omitted). Under an IEP,
7 "education [must] be provided in the 'least restrictive setting
8 consistent with a child's needs.'" Id. (quoting Walczak, 142
9 F.3d at 122 (2d Cir. 1998)). The IEP is "[t]he centerpiece of
10 the IDEA's educational delivery system." D.D. ex rel. V.D., 465
11 F.3d at 507 (internal quotation marks omitted).
12 "Since New York State receives federal funds under
13 IDEA, it is obliged to comply with the requirements of this law.
14 To meet these obligations and to implement its own policies
15 regarding the education of disabled children, the State has
16 assigned responsibility for developing appropriate IEPs to local
17 Committees on Special Education [('CSEs')], the members of which
18 are appointed by school boards or the trustees of school
19 districts." Walczak, 142 F.3d at 123 (citing N.Y. Educ. Law
20 § 4402(1)(b)(1)). "In developing a particular child's IEP, a CSE
21 is required to consider four factors: (1) academic achievement
22 and learning characteristics, (2) social development, (3)
23 physical development, and (4) managerial or behavioral needs."
24 Gagliardo, 489 F.3d at 107-08 (citing N.Y. Comp. Codes R. & Regs.
6 1 ("NYCCRR") tit. 8, § 200.1(ww)(3)(i)). "[T]he CSE must also be
2 mindful of the IDEA's strong preference for 'mainstreaming,' or
3 educating children with disabilities '[t]o the maximum extent
4 appropriate' alongside their non-disabled peers." Id. at 108
5 (citing 20 U.S.C. § 1412(a)(5)) (second set of brackets in
6 original).
7 If a New York parent "believe[s] an IEP is insufficient
8 under the IDEA," he or she "may challenge it in an 'impartial due
9 process hearing,' 20 U.S.C. § 1415(f), before an [Impartial
10 Hearing Officer, or 'IHO'] appointed by the local board of
11 education." Grim, 346 F.3d at 379 (quoting N.Y. Educ. Law
12 § 4404(1)). At the hearing before the IHO, "the school district
13 has the burden of demonstrating the appropriateness of its
14 proposed IEP." Id. As the governing New York State statute
15 explains:
16 The board of education or trustees of the 17 school district or the state agency 18 responsible for providing education to 19 students with disabilities shall have the 20 burden of proof, including the burden of 21 persuasion and burden of production, in any 22 such impartial hearing, except that a parent 23 or person in parental relation seeking 24 tuition reimbursement for a unilateral 25 parental placement shall have the burden of 26 persuasion and burden of production on the 27 appropriateness of such placement. 28
7 1 N.Y. Educ. Law § 4404(1)(c).3 An IHO's decision may, in turn, be
2 appealed to a State Review Officer ("SRO"), who is an officer of
3 the State's Department of Education. Grim, 346 F.3d at 379-80.4
3 In Schaeffer ex rel. Schaeffer v. Weast, 546 U.S. 49 (2005), the Supreme Court concluded that the IDEA placed the burden of challenging an IEP on the party bringing the challenge. Id. at 57-58. The Court, however, left unanswered the question whether states could "override the default rule and put the burden always on the school district." Id. at 61-62. Since Schaeffer, New York has amended its statutory scheme to reallocate the burden to the District, even in cases where the parents are challenging the IEP. See W.T. v. Bd. of Educ. of School Dist. of N.Y.C., 716 F. Supp. 2d 270, 287 (S.D.N.Y. 2010). We need not, however, resolve the question the Supreme Court left open in Schaeffer -- whether the State has the power to override the IDEA burden scheme. Because the State Review Officers in the cases at bar concluded that the IEPs were proper, and the courts are bound to exhibit deference to that decision, the burden of demonstrating that the respective Review Officers erred is properly understood to fall on the plaintiffs. See id. To the extent that the district court in these cases, or this Court on review, must determine whether the state administrative decisions were supported by a preponderance of the evidence, which party bore the burden of persuasion in the state review scheme is only relevant if the evidence was in equipoise. See Nw. Mut. Life Ins. Co. v. Linard, 498 F.2d 556, 560 (2d Cir. 1974); see also Schaeffer, 546 U.S. at 58 ("Petitioners also urge that putting the burden of persuasion on school districts will further IDEA's purposes because it will help ensure that children receive a free appropriate public education. In truth, however, very few cases will be in evidentiary equipoise."). That is not the situation here. 4 The overlapping roles of the State and the School District in IDEA cases in New York further complicate the confusing, alphabet-soup nature of IDEA cases brought in New York City . In New York, the School District -- here the defendant New York City Department of Education -- is responsible for complying with the IDEA. The School District also appoints the IHO, who is responsible for determining whether the School District has met its obligations under the IDEA. If, however, either party is dissatisfied with the decision of the IHO, it may appeal the decision to the SRO, who, unlike the IHO, is appointed by the State's Education Department. See generally N.Y. Educ. Law. § 4404. In this opinion, we refer to the City's Department of
8 1 Generally, either "party aggrieved" by the findings of
2 the SRO "shall have the right to bring a civil action" in either
3 state or federal court. 20 U.S.C. § 1415(i)(2)(A). When such an
4 action is brought in federal district court, the court reviews
5 the records of all of the prior administrative hearings and must
6 hear additional evidence if so requested by either of the
7 parties. Id. at § 1415(i)(2)(c). The court typically considers
8 the propriety of the IEP on the parties' cross motions for
9 summary judgment.
10 However,
11 a motion for summary judgment in an IDEA case 12 often triggers more than an inquiry into 13 possible disputed issues of fact. Rather, 14 the motion serves as a pragmatic procedural 15 mechanism for reviewing a state's compliance 16 with the procedures set forth in [the] IDEA 17 [in developing the specific IEP at issue] and 18 determining whether the challenged IEP is 19 reasonably calculated to enable the child to 20 receive educational benefits. 21 Lillbask ex rel. Mauclaire v. State of Conn. Dep't of Educ., 397
22 F.3d 77, 83 n.3 (2d Cir. 2005) (internal quotation marks
23 omitted). "Though the parties in an IDEA action may call the
24 procedure 'a motion for summary judgment,' the procedure is in
25 substance an appeal from an administrative determination, not a
26 summary judgment [motion]." Id. (ellipsis, brackets, and
27 citation omitted). "[B]asing its decision on the preponderance
Education as the "DOE" or the "School District." We refer to the State's Education Department as the "Education Department."
9 1 of the evidence, [the court is required to] grant such relief as
2 the court determines is appropriate." § 1415(i)(2)(C)(iii).
3 In the separate proceedings consolidated for purposes
4 of this appeal, the parent plaintiffs assert that the school
5 districts serving their children, having failed to provide each
6 of them with a free appropriate public education ("FAPE"), must
7 reimburse the parents for the costs associated with sending these
8 children to private schools for an appropriate education.
9 Although these cases are similar to many IDEA cases in this
10 regard, see, e.g., Gagliardo, 489 F.3d at 106, they inevitably
11 involve distinct facts and procedural histories.
12 M.H. Background
13 P.H., the son of M.H. and E.K., was born on October 11,
14 2001. He is autistic. During the 2006-07 school year, when P.H,
15 was of pre-school age, he attended a mainstream preschool.
16 Pursuant to a mandate of the Committee on Preschool Special
17 Education (the "CPSE") of the New York State Education
18 Department, he received Special Education Itinerant Teacher
19 ("SEIT") services on a one-to-one ("1:1") basis. The SEIT worked
20 one-on-one with P.H. throughout the school day at P.H.'s home.
21 Plaintiffs' 56.1 Statement ¶¶ 2-3, M.H. v. N.Y.C. Dep't of Educ.,
22 712 F. Supp. 2d 125 (S.D.N.Y. 2010) (No. 09 Civ. 3657), ECF No.
23 13 ("Pls. 56.1 Stmt."); Defendants' 56.1 Response ¶¶ 2-3, M.H. v.
24 N.Y.C. Dep't of Educ., 712 F. Supp. 2d 125 (S.D.N.Y. 2010) (No.
10 1 09 Civ. 3657), ECF No. 19 ("Def.'s 56.1 Resp."). Pursuant to the
2 CPSE mandate, P.H.'s SEITs were trained in Applied Behavior
3 Analysis ("ABA")5 and provided at least 35 hours weekly of
4 services using that approach. Pls.' 56.1 Stmt. ¶¶ 2-3; Def.'s
5 56.1 Resp. ¶¶ 2-3.
6 In addition, P.H. received several related services
7 weekly, including five 60-minute speech therapy sessions; three
8 60-minute occupational therapy sessions; and two 60-minute
9 physical therapy sessions. Pls.' 56.1 Stmt. ¶ 4; Def.'s 56.1
10 Resp. ¶ 4.
11 The DOE's CSE convened a meeting on April 17, 2007, to
12 discuss P.H.'s educational program for the 2007-08 school year –
ABA uses careful behavioral observation and positive reinforcement or prompting to teach each step of a behavior. A child's behavior is reinforced with a reward when he or she performs each of the steps correctly. Undesirable behaviors, or those that interfere with learning and social skills, are watched closely. The goal is to determine what happens to trigger a behavior, and what happens after that behavior that seems to reinforce the behavior. The idea is to remove these triggers and reinforcers from the child’s environment. New reinforcers are then used to teach the child a different behavior in response to the same trigger. Factsheet for Autism Therapy: Applied Behavior Analysis, HEALING THRESHOLDS (Nov. 5, 2009, last updated Dec. 21, 2009), http://autism.healingthresholds.com/therapy/applied-behavior-anal ysis-aba (footnotes and emphases omitted).
11 1 when P.H. would be in kindergarten -- and to formulate his IEP
2 for that year. Pls.' 56.1 Stmt. ¶ 5; Def.'s 56.1 Resp. ¶ 5. The
3 CSE comprised: (1) Giselle Jordan, a DOE representative and
4 school psychologist who led the meeting; (2) P.H.'s SEIT; (3) a
5 social worker; (4) a general education teacher; (5) a special
6 education teacher; (6) P.H.'s parents; (7) an additional parent
7 member of the CSE; and (8) the director of P.H.'s preschool
8 program. Pls.' 56.1 Stmt. ¶ 6.
9 Jordan, as CSE team leader, was ultimately responsible
10 for preparing P.H.'s IEP. Jordan had never met P.H. She
11 testified that she prepared the IEP by reviewing all of the
12 records provided to her and participating in the CSE meeting.
13 Before the CSE meeting, P.H.'s parents provided the CSE
14 with several documents, including: (1) a psycho-educational
15 evaluation of P.H. and addendum prepared by Dr. David Salsberg, a
16 supervising pediatric psychologist at NYU Medical Center, who
17 treated P.H. privately; (2) P.H.'s speech, occupational, and
18 physical therapy progress reports prepared by treating
19 specialists; (3) an educational progress report from P.H.'s SEIT;
20 (4) a social history update from a DOE social worker; (5) a
21 classroom observation report by a different DOE social worker;
22 and (6) a report prepared by P.H.'s pre-school teacher. Jordan
23 testified in the subsequent proceedings before the IHO that it
12 1 was her practice to review all submitted documents before the CSE
2 meeting.
3 According to the documents submitted to the CSE, along
4 with a public-school placement, P.H. received occupational
5 therapy, speech therapy, ABA therapy, and physical therapy at
6 home. He was making moderate progress with this combination of
7 mainstream placement and private support. The SEIT's report
8 stated that "[b]eing around typical peers [in the mainstream pre-
9 school] ha[d] helped [P.H.] in his ability to communicate
10 socially." Overall, P.H. had made "substantial progress
11 throughout the year." M.H., Joint Appendix in Court of Appeals
12 filed Oct. 13, 2010 ("M.H. J.A."), at 1185.
13 P.H.'s parents reported to the CSE that they thought he
14 was "doing very well in his current mainstream placement and
15 [was] flourishing with typical peers." Id. at 1192. Dr.
16 Salsberg's report offered the view that P.H. should be placed in
17 "a small classroom setting . . . [that] provide[s] frequent
18 opportunities for social interaction with peers." Id. at 1144.
19 Dr. Salsberg's initial report did not mention ABA therapy, but
20 his addendum stated that P.H. "requires 1:1 intensive language-
21 based behavioral interventions by an experienced SEIT throughout
22 the day," and that P.H. "requires continuation of his home-based
23 ABA, [occupational therapy,] and speech/language program." Id.
24 at 1189. P.H.'s preschool teacher similarly opined that P.H.
13 1 required 1:1 support in order to function in the classroom
2 setting. She thought, though, that the classroom setting was not
3 "an appropriate place" for him. Id. at 1159.
4 As a result of the April 17 DOE CSE meeting, the CSE
5 formulated an IEP for P.H. Pls.' 56.1 Stmt. ¶ 22; Def.'s 56.1
6 Resp. ¶ 22. Under the IEP, P.H. would be placed in a special
7 school in a special education class with a 6:1:1 student-teacher-
8 paraprofessional ratio. The IEP also provided for (1) twice
9 weekly 30-minute physical therapy sessions; (2) thrice weekly 30-
10 minute occupational therapy sessions; and (3) thrice weekly 30-
11 minute speech and language therapy sessions. Under this IEP,
12 P.H. would thus receive fewer hours of these related services
13 than he had been receiving under the prior year's plan.
14 Based on the IEP, by Final Notice of Recommendation
15 dated July 11, 2007, the School District notified P.H.'s parents
16 that he had been placed at the school denominated P.S. 94, a
17 smaller school located within the building of P.S. 15, on East
18 4th Street in Manhattan.6
6 Both P.H.'s and D.S.'s Final Notices of Recommendation from DOE indicate that they were assigned to P.S. 94. But the schools appear to be located at different addresses and within different mainstream-schools. Although this is confusing, the confusion need not be resolved beyond noting that we find nothing to indicate that P.H. and D.S. would have attended the same school as one another had they both attended the public schools to which they were assigned in their IEPs.
14 1 The parties dispute what happened after parents M.H.
2 and E.K. received the IEP and Final Notice of Recommendation.
3 The plaintiff parents assert that "[f]or two weeks" they
4 "attempted to contact the proposed placement to schedule a visit
5 to determine whether the class was appropriate for P.H. There
6 was no answer at the school building and the parent[s'] messages
7 were not returned." Pls.' 56.1 Stmt. ¶ 28.
8 Thereafter, the parents say, they were directed to
9 Ronnie Schuster, the principal at a different site, who, the
10 parents were told, would be the principal at P.S. 94 in the fall.
11 They assert that they visited Schuster's then-school on August 7
12 or 8, 2007, to observe a class similar to the one in which P.H.
13 would be enrolled at P.S. 94 pursuant to his IEP. They met Oliva
14 Cebrian, a teacher who was to be the site leader at P.S. 94.
15 Cebrian took them to observe a 6:1:1 summer-program class that,
16 she said, was similar to the class P.H. could expect to enter in
17 the fall. Id. ¶ 30. In their view, the children in the class
18 were lower functioning than P.H. and had "little expressive
19 language." M.H. J.A. at 727. It appeared to M.H. that the
20 teacher was only "babysitting" the children. Id. M.H. also
21 contended that Cebrian told him that the mainstream children at
22 the school did not act as though they welcomed special education
23 children -- the latter group ate lunch in a separate cafeteria
24 and used a separate entrance to the school.
15 1 After the visit, M.H. again contacted Schuster, seeking
2 further information about the placement, including whether P.H.
3 would be able to interact with mainstream students. Schuster
4 referred him to another DOE employee, Sonia Royster, whom he then
5 telephoned. When, according to M.H., Royster did not return the
6 call, M.H. followed up by letter. According to M.H., Royster
7 never responded.
8 At about the same time, M.H. and E.K., who were not yet
9 persuaded that the IEP's placement was appropriate for their son,
10 explored other options, including the Brooklyn Autism Center
11 ("BAC"), a private school. The plaintiffs visited BAC and met
12 with its educational director, Jaime Nicklas. BAC provides a
13 program for autistic children that features intensive ABA 1:1
14 instruction to its five students; tuition is $80,000 per school
15 year, payable at the beginning of each year.
16 After the visit, the parents submitted an application
17 to BAC. M.H. testified that with the start of the school year
18 fast approaching, his intention was "to place [P.H.] temporarily
19 if they'll accept him into BAC in that program," while M.H.
20 continued to seek information regarding the IEP's public school
21 placement. M.H. J.A. 733. P.H. was accepted into BAC, and the
22 plaintiffs signed the contract with the school and paid a
23 deposit.
16 1 On August 24, 2007, one week after signing the BAC
2 contract, M.H. visited Royster -- to whom Schuster had referred
3 him -- at her office. According to M.H., Royster could not
4 provide any further information about P.H.'s placement. M.H.
5 asserts that he "literally had to camp out" at the CSE office "to
6 get any information whether it be on [P.H.'s placement or] his
7 related services." M.H. J.A. 736.
8 On the first day of school at P.S. 94 – September 10,
9 2007 – according to M.H., having failed to get any information
10 from Royster, M.H. again contacted Schuster. When, he says, he
11 did not receive a response, he followed up by email on September
12 14, inquiring whether he could visit the proposed placement. He
13 did not receive a responsive email until nine days later, on
14 September 19.
15 The next day, after observing two different classes at
16 P.S. 94, M.H. was of the view that neither was an appropriate
17 place for his son: In one, the students were young and, unlike
18 P.H., nonverbal and not toilet trained; in the second, the
19 students were many years P.H.'s senior. M.H. also thought that
20 P.H. would not benefit from the instruction offered in the
21 classes, both because the school offered only minimal ABA 1:1
22 therapy and because, M.H. thought, the methodologies the school
23 did use would not work for P.H.
17 1 The DOE contends that it could have offered P.H.
2 placement in yet a third class, but does not suggest that it so
3 informed M.H. After visiting P.S. 94, the parents decided to
4 keep P.H. at BAC for the 2007-08 school year, and paid the
5 remainder of the $80,000 tuition in full.
6 By letter dated October 30, 2007, M.H. and E.K.,
7 through counsel, requested a due process "impartial hearing" and
8 sought reimbursement for P.H.'s BAC tuition. In that request,
9 they alleged that the DOE failed to provide P.H. with a FAPE,
10 developing instead a procedurally and substantively unreasonable
11 IEP.
12 The parents also asserted three specific procedural
13 challenges to the IEP: (1) that the annual goals and short-term
14 objectives presented for P.H. were "generic and vague," and
15 lacked evaluative criteria, in violation of the IDEA; (2) that
16 the CSE failed to conduct an Functional Behavioral Assessment
17 ("FBA") to evaluate P.H.'s social needs; and (3) that the IEP
18 ultimately did not mandate social and emotional counseling for
19 P.H. despite acknowledging at one point in the document that such
20 counseling was necessary. The plaintiffs also asserted that the
21 IEP was substantively inadequate because the classrooms
22 identified for P.H. did not meet his needs and would not have
23 provided him with an educational benefit.
18 1 As is required under the IDEA, in response to the
2 parents' request, a DOE IHO conducted a hearing to review the
3 IEP. The hearing lasted eight non-contiguous days between
4 January 30, 2008, and September 5, 2008. M.H. J.A. 1345.
5 The DOE, which bore the burden of proof, presented
6 testimony by: Giselle Jordan, the CSE organizer and drafter of
7 the IEP; and Susan Cruz, an Assistant Principal at the proposed
8 placement. Id. at 1345-47.
9 Jordan testified, among other things, that she had
10 reviewed all of the documents submitted to the CSE committee.
11 She stated that P.H. did not demonstrate behavioral problems that
12 interfered with his learning; described the CSE meeting and the
13 process of producing the IEP; and discussed P.H.'s test scores.
14 Cruz explained the structure and programming at P.S. 94.
15 Later, on rebuttal, the DOE also called Elizabeth
16 Washburn, a teacher at P.S. 94, and Kay Cook, a "coach" who
17 trains DOE staff on teaching methodologies for autistic students
18 including ABA, TEACCH, and PECS, the latter being the principal
19 methodologies used at P.S. 94.
20 The plaintiffs presented testimony by BAC director
21 Jaime Nicklas; P.H.'s treating psychologist Dr. David Salsberg;
22 P.H.'s speech pathologist Miranda White; and M.H., P.H.'s father.
23 In addition to explaining BAC's program, Nicklas described the
24 ABA methodology in depth and voiced her opinion that ABA is "the
19 1 only empirical method approved to treat children with autism."
2 M.H. J.A. at 454. She admitted, however, that "a strict ABA
3 program is not appropriate for every single child," and that
4 higher functioning children would not benefit from being in a
5 "more restrictive environment . . . if they can communicate and
6 if they can learn in a large group setting." M.H. J.A. at 467.
7 She also testified that based on her observation of P.H., it was
8 clear to her that he needed an ABA program to progress. Finally,
9 Nicklas testified that P.H. had made great strides during his
10 time at BAC, learning to identify objects he wanted, asking for
11 help, walking quietly, and identifying basic numbers and words,
12 among other things. Dr. Salsberg's testimony focused on the
13 importance of ABA treatment to P.H.'s continued progress.
14 After hearing the testimony, the IHO issued her
15 findings and decision. She agreed with the parents that the
16 IEP's annual goals and objectives were "generic and vague" and
17 "not based on his actual needs and abilities, but on the grade he
18 was expected to be placed in." M.H. J.A. at 1356. In support of
19 this conclusion, the IHO cited Jordan's testimony to the effect
20 that prior to the IEP meeting she thought P.H. would be entering
21 first grade, and that, after learning that he would in fact be
22 entering kindergarten, she changed the annual goals but did not
23 change the short-term goals and objectives. Id. The IHO also
24 agreed with the parents that "some of the April 2007 IEP annual
20 1 goals and short term objectives in reading comprehension, reading
2 skills and math [were] not measurable since they d[id] not
3 contain evaluative criteria, evaluation procedures and schedules
4 to be used to measure progress." Id.
5 The IHO then discussed her review as to the appropriate
6 method for teaching P.H. Although the parents did not
7 specifically raise this issue in their letter requesting the
8 hearing, the IHO characterized the parents as "contend[ing] that
9 the appropriate methodology for the student was ABA discre[te]
10 trial instruction." Id. at 1357. According to the IHO, P.H.'s
11 "evaluations support their claim." Id. The IHO then decided
12 that the IEP's proposed placement did not offer sufficient 1:1
13 ABA instruction, but that the BAC did. Id. Finally, the IHO
14 concluded that because BAC was an appropriate place for P.H. and
15 because equitable considerations favored the parents,
16 reimbursement of P.H.'s BAC tuition costs was appropriate. Id.
17 The DOE appealed the IHO's decision to the SRO. On
18 December 10, 2008, the SRO issued a decision reversing the IHO.
19 Id. at 1362. After recounting the facts in some detail, the SRO
20 addressed the DOE's contention that because the parents did not
21 raise the question of educational methodology in their letter
22 requesting the due process hearing, the IHO should not have
23 considered it. He concluded that in light of the parents'
24 failure to include such a claim in their letter, it was
21 1 "procedurally improper for the [IHO] to bas[e] her finding that
2 the district did not provide the student a FAPE in part on her
3 determination that the appropriate methodology for [P.H.] was
4 ABA." Id. at 1372. Turning to the merits, the SRO "f[ound] that
5 the . . . annual academic goals [contained in the IEP] were
6 appropriate for [P.H.] and that they provided meaningful guidance
7 to the teacher responsible for implementing the goals." Id. at
8 1374.
9 With regard to the IEP's "non-academic goals," the SRO
10 acknowledged that some of those contained in the IEP "lacked a
11 written specified level of difficulty when isolated out of
12 context and viewed alone," but thought that because "the majority
13 of the student's short-term objectives were both detailed and
14 measurable," this cured any deficiencies with the annual goals.
15 Id. The SRO was also satisfied that the "IEP . . . contained
16 sufficient goals and short-term objectives relating to [P.H.'s]
17 social/emotional needs." Id. He also noted that "although not
18 dispositive," the parents did not express any concern about the
19 specificity of the IEP's goals until they filed their hearing
20 request letter. Id. at 1375.
21 Turning to the substance of the program endorsed by the
22 IEP, the SRO determined that although the parents "previously
23 indicated that they believed [P.H.] was doing 'very well' in his
24 mainstream preschool setting with SEIT support and they wanted
22 1 him to be placed in a similar setting for kindergarten, the
2 hearing record does not support that a general education setting
3 would be appropriate [for P.H.]." Id. (citation omitted). The
4 SRO then cited testimony regarding P.S. 94's use of "various
5 methodologies," and concluded that "the recommended placement was
6 reasonably calculated to enable [P.H.] to obtain educational
7 benefit." Id. The SRO thus decided that the IHO had "erred in
8 [her] determination that the district did not offer [P.H.] a FAPE
9 for the 2007-08 school year." Id. The SRO therefore did not
10 reach the question of whether BAC was an appropriate unilateral
11 placement.
12 M.H. and E.K., on behalf of P.H., challenged the SRO's
13 decision through a civil action brought in the United States
14 District Court for the Southern District of New York. By
15 complaint dated April 9, 2009, the plaintiffs sought "(a) a
16 modified de novo review and reversal of the . . . [SRO]'s
17 December 10, 2008 Decision . . . ; (b) a determination that M.H.
18 and E.K. and P.H. have met the applicable Second Circuit standard
19 for reimbursement of tuition paid for the unilateral provision of
20 special education services to P.H.; (c) an order directing
21 defendant to reimburse plaintiff, as requested, for the provision
22 of such educational services; and (d) an order granting plaintiff
23 leave to file a fee application pursuant to the fee shifting
24 provisions of the statute." Compl. at 2, M.H. v. N.Y.C. Dep't of
23 1 Educ., 712 F. Supp. 2d 125 (S.D.N.Y. 2010) (No. 09 Civ. 3657),
2 ECF No. 1.
3 The parties then cross-moved for summary judgment. By
4 a lengthy and detailed Opinion and Order dated May 10, 2010, the
5 district court (Loretta A. Preska, Chief Judge) reversed the SRO,
6 agreeing with the IHO instead. M.H. v. N.Y.C. Dep't of Educ.,
7 712 F. Supp. 2d 125 (S.D.N.Y. 2010). After a careful rehearsal
8 of the facts, the court engaged in a point-by-point consideration
9 of the IHO's and SRO's decisions.
10 First, the district court decided that the SRO had
11 erred by declining to consider the plaintiffs' evidence regarding
12 the proper methodology for teaching their son. Id. at 148-52.
13 In the district court's view, it was the DOE that first raised
14 the issue of methodology. The plaintiffs could not fairly be
15 precluded from responding. Id.
16 Second, the district court concluded that the IEP did
17 not comply with IDEA's procedural requirements. In analyzing the
18 issue, the court began with the observation that the opinion of
19 the SRO was neither cogently reasoned nor supported by adequate
20 evidence. The court therefore based its analysis on the
21 reasoning and conclusions of the IHO. The district court thought
22 them clear and in accordance with the applicable standards
23 previously set forth by this Court. Id. at 153-63.
24 1 The district court did not, however, fault the CSE for
2 its failure to conduct a Functional Behavioral Assessment. An
3 FBA is the "process of determining why a student engages in
4 behaviors that impede learning and how the student's behavior
5 relates to the environment." NYCRR tit. 8, § 200.1®. The CSE
6 did not conduct an FBA before adopting P.H.'s IEP. In P.H.'s
7 case, an FBA would have considered why he engaged in abnormal
8 behavior such as repeatedly biting his hand, screaming, and self-
9 stimulating, or "stimming." Pls.' 56.1 Stmt. ¶¶ 15-16.
10 As the district court noted, "[f]ailure to conduct an
11 FBA does not amount to a procedural violation of the IDEA where
12 the IEP sets forth other means to address the student's
13 problematic behaviors." Id. at 158. The court concluded that
14 because the IEP identifies P.H.'s problematic behavior but states
15 that it does not render him entirely unteachable, the SRO's
16 determination that the absence of an FBA did not render the IEP
17 unreasonable was appropriate. Id. at 159.
18 With regard to the IEP's substantive compliance with
19 IDEA mandates, the district court relied on the IHO's opinion
20 rather than that of the SRO. Id. at 159-66. The court agreed
21 with the IHO's conclusion that the IEP did not provide a program
22 that would meet P.H.'s needs. Id. The court also accepted the
23 IHO's determination that the classroom identified for P.H. was
24 not appropriate because it did not provide sufficient ABA
25 1 therapy. Id. at 161-63. Finally, the court agreed with the IHO
2 that BAC was an appropriate unilateral placement, and that
3 equitable considerations favored reimbursement. Id. at 163-70.
4 The court therefore granted the plaintiffs' motion for summary
5 judgment, denied the defendant's, and ordered the DOE to
6 reimburse the plaintiffs for P.H.'s 2007-08 BAC tuition. Id. at
7 170.
8 M.S. Background
9 M.S. and L.S.'s son, D.S., was diagnosed with an autism
10 spectrum disorder -- more specifically, Pervasive Developmental
11 Disorder -- when he was 17 months old.7 Immediately thereafter,
12 D.S. began to receive services from the New York State Early
13 Intervention program ("E.I."), including 20 hours per week of
14 special education involving a combination of ABA and other
15 therapy techniques. M.S., Joint Appendix in Court of Appeals
16 filed Oct. 29, 2010 ("M.S. J.A."), at 912. He also received
17 occupational and physical therapy. Id. Within a year it became
18 clear that methodologies other than ABA were not working for D.S.
19 His therapy was therefore increased to 30 hours of ABA each week.
7 Pervasive Developmental Disorder (Not Otherwise Specified) "became the diagnosis applied to children or adults who are on the autism spectrum but do not fully meet the criteria for another [autism-spectrum disorder] such as autistic disorder (sometimes called 'classic' autism) or Asperger Syndrome." What is Autism?, Autism Speaks, http://www.autismspeaks.org/what-autism/pdd-nos (last visited, June 27, 2012).
26 1 By the time D.S. "aged out" of E.I., he was receiving 40 hours of
2 ABA therapy with an SEIT, in addition to five hours per week of
3 speech and occupational therapy and two hours per week of
4 physical therapy, each of them in one-hour sessions. D.S.
5 continued to receive this program by mandate of the CPSE. At
6 four years old, D.S. was totally non-verbal, engaged in
7 "extremely high rates of self-stimulatory behaviors," and
8 displayed "distractible tendencies [that] profoundly interfere[d]
9 with his learning and ability to attend to people and things in
10 his environment." M.S. J.A. 234. In addition, he often put non-
11 edible objects into his mouth.
12 Beginning with the 2007-08 school year, D.S. was
13 considered by the CPSE to be a "school aged" child. He was
14 therefore required to have an IEP created for him by a CSE -- a
15 Committee on Special Education -- rather than an educational plan
16 prescribed by the DOE's CPSE. In late May 2007, L.S., D.S.'s
17 mother, was notified that the CSE would be meeting to consider
18 the issue. L.S. telephoned Dr. Bowser, the district
19 representative responsible for D.S.'s IEP, to schedule the
20 meeting and offered to provide Dr. Bowser with evaluations of
21 D.S. by his then-caregivers. Dr. Bowser informed L.S. that she
22 could bring the evaluations to the CSE meeting rather than
23 sending them to Bowser so that she could review them in
24 preparation for the meeting.
27 1 The CSE convened a meeting on June 4, 2007, to discuss
2 D.S.'s IEP for his kindergarten year. In attendance were, inter
3 alios, (1) L.S.; (2) a special education teacher; (3) a general
4 education teacher; and (4) Dr. Bowser. DOE evaluator Marion
5 Pearl addressed the meeting by phone. The meeting lasted 45
6 minutes. At the beginning of the meeting, Dr. Bowser informed
7 L.S. that although she had a right to have a parent member8
8 present, no parent member was available to attend that day.
9 According to L.S., Bowser appeared "quite stressed" about getting
10 the IEP done by early June. L.S. therefore "felt pressured to
11 have the meeting" even without a parent member present. M.S.
12 J.A. 918. L.S. therefore signed a waiver agreeing to the absence
13 of the parent member. Id.
14 The group received several written reports from D.S.'s
15 educational service providers. D.S.'s occupational therapist
16 reported that D.S.'s progress had been "extremely slow," and that
17 "[i]t is essential that [D.S.] receive[] [occupational therapy] 5
18 times a week for at least 60 minutes in order to make adequate
8 A "parent member" is a parent of another disabled child or a child who was recently "declassified" as disabled who participates in the CSE in order to ensure that the parents understand the IEP-formulation process, are "comfortable" with the IEP team's decisions, and have "had their concerns adequately addressed." Make a Difference. Become a Parent IEP Team Member, N.Y.C. DEP'T OF EDUC., http://schools.nyc.gov/Academics/SpecialEducation/when-is-the- next/parentTeamMember.htm (last visited June 27, 2012).
28 1 progress." M.S. J.A. 251. D.S.'s speech therapist wrote that as
2 of that time, D.S. had "never spoken" and could "not effectively
3 communicate pain or discomfort . . . [or] basic wants or needs."
4 Id. at 247. She thought it to be "imperative that [D.S.]
5 continue[s] to receive speech and language therapy for no [fewer]
6 than [5] times weekly for [60] minute session to maintain and
7 carryover learned skills thus far, and to help him to communicate
8 spontaneously." Id.
9 D.S.'s physical therapist "recommended that [D.S.]
10 continue to receive physical therapy services as per mandate" to
11 continue his improvement. Id. at 249. The CSE group also
12 received a report from DOE evaluator Pearl, who, according to
13 L.S., recommended that D.S. be placed in an ABA program.
14 Jill Weynert, D.S.'s preschool program coordinator and
15 a certified behavior analyst, expressed the view at the IHO
16 hearing that D.S. "absolutely needed a one to one -- he needed an
17 ABA program." Id. at 481. Weynert explained that D.S. "had a
18 hard enough time learning with one to one," and that he "wouldn't
19 be able to learn" in a group setting. Id. at 483-84. She also
20 stated that unlike most children, D.S. would not benefit from
21 being exposed to peers in a classroom environment because he
22 could not "attend to other kids." Id. at 484.
23 According to Weynert, there was no discussion at the
24 CSE meeting of D.S.'s progress over the previous year, or whether
29 1 he had achieved any of the annual or short-term goals that the
2 CPSE had theretofore set out for him. L.S. later testified
3 before the DOE IHO that during the meeting, Bowser indicated that
4 D.S. would be placed in a 6:1:1 program despite L.S.'s "expressed
5 . . . concerns" about such a placement. M.S. J.A. 921. L.S.
6 requested that the CSE consider programs like the one at the New
7 York City Charter School of Autism, which provides 1:1 ABA
8 therapy. Spaces at the City School of Autism are allocated by
9 lottery. D.S. had not been chosen. But L.S. hoped the DOE might
10 be able to offer a similar program elsewhere. Dr. Bowser
11 informed L.S. that "all . . . she could offer at th[e] time . . .
12 was a 6:1:1 placement, that was all that was available." Id.
13 Ultimately, D.S.'s IEP did not reflect his progress
14 during the previous year or how that progress might call for
15 altering goals for the subsequent year. Instead, the team
16 photocopied D.S.'s goals and objectives from the previous year's
17 CPSE plan for use in the then-current year despite the fact that
18 those goals and objectives were not only a year old, but had been
19 drafted for the home-based 1:1 program D.S. was offered that year
20 and were therefore, according to M.S. and L.S.'s arguments,
21 inapplicable to the then-current year.
22 The CSE, led by Bowser, ultimately recommended in the
23 IEP that they approved for D.S. that he attend a classroom-based
30 1 6:1:1 program in a District 75 school.9 The IEP noted that the
2 committee had considered and rejected five other types of
3 placements, including general education and a 12:1:1 special
4 education class in a District 75 school. The plan did not,
5 however, reflect any consideration by the committee of a 1:1 ABA
6 program. The IEP also reduced D.S.'s related services, directing
7 that he receive thirty minutes each of occupational, physical,
8 and speech therapy, five times per week, and thirty minutes of
9 counseling three times weekly.
10 After receiving a final notice of D.S.'s placement at
11 P.S. 94 (part of P.S. 196)10 in late-June 2007, L.S. visited the
12 school, accompanied by Dr. Weynert. For two hours, they observed
13 the class to which D.S. would be assigned. L.S. later reported
14 that the class had only one non-verbal student, and that the book
15 he used for communicating -- his PECS book11 – stayed in his desk
9 District 75 "provides citywide educational, vocational, and behavior support programs for students who are on the autism spectrum, have significant cognitive delays, are severely emotionally challenged, sensory impaired and/or multiply disabled. District 75 consists of 56 school organizations, home and hospital instruction and vision and hearing services." Special Education District 75, http://schools.nyc.gov/Offices/District75/default.htm (last visited June 27, 2012). 10 See supra note 6. 11 "Picture Exchange Communication System (PECS) is augmentative/alternative communication strategy for those who display little or no speech." http://www.pecsusa.com/research.php (last visited June 27, 2012); see also supra note 7.
31 1 the entire time she was there, leaving him with no way to
2 communicate. L.S. also noted that although she had been told
3 that the non-toilet-trained students in the class were brought to
4 the bathroom every 30 minutes, she did not observe them being
5 taken to the restroom at all in her two hours there.
6 L.S. also expressed concern that the teachers were not
7 adequately trained, that the students' self-stimulatory behaviors
8 went unchecked, and that D.S.'s "mouthing" behaviors -- i.e., his
9 tendency to put anything and everything in his mouth -- were
10 dangerous and would not be properly monitored at the school.
11 When L.S. raised these issues with P.S. 94's principal
12 Ronnie Schuster, she agreed that "she in fact would be concerned
13 for [D.S.'s] safety" there, particularly if he did not have a
14 paraprofessional devoted to him throughout the day. M.S. J.A. at
15 936. Teachers at the school indicated that the school did
16 provide ABA programs to some students, but these programs were
17 not individualized and were offered in only part of the special
18 education classroom. At the end of the visit, L.S. "felt
19 strongly that I was in agreement with the experts, the
20 professionals, the doctors, the educators, who had all -- all
21 told me that" D.S. would not fare well in a 6:1:1 setting. Id.
22 at 941.
23 In light of their discomfort, D.S.'s parents explored
24 private school options for D.S., including the BAC. D.S. was
32 1 accepted to BAC and another specialized school. His parents
2 chose to enroll him at BAC, which offers only ABA 1:1 teaching.
3 They signed a contract with BAC pledging to pay the $80,000
4 tuition for the 2007-08 school year.
5 By letter dated December 28, 2007, the plaintiffs filed
6 with the DOE a request for an impartial hearing. In the letter,
7 the plaintiffs alleged that the DOE failed to provide D.S. a FAPE
8 for the 2007-08 school year inasmuch as: (1) the CSE team was not
9 properly constituted at the June 4, 2007, meeting at which the
10 individualized education plan was developed, because it lacked a
11 parent member, and the general education teacher was present for
12 only part of the meeting; (2) the IEP failed to set new goals for
13 D.S. for the relevant school year, instead photocopying his goals
14 from the previous year, which had been developed for a 1:1
15 program and did not reflect D.S.'s progress during the prior
16 year; (3) the IEP failed to explain why D.S.'s related services
17 were reduced; and (4) the 6:1:1 program to which D.S. had been
18 assigned could provide neither an appropriate peer group nor
19 adequate supervision and instruction. The parents sought
20 reimbursement for D.S.'s BAC tuition for that year.
21 The IHO convened a hearing comprising six hearing days
22 between April 9, 2008, and October 8, 2008. At the hearing, the
23 DOE called as witnesses: (1) Dr. Bowser; (2) Alex Campbell, a
24 special education teacher who was in charge of the 6:1:1 class to
33 1 which the IEP had assigned D.S.; and (3) Susan Cruz, an assistant
2 principal of P.S. 94, who testified generally about the school.
3 Bowser was the DOE's principal witness. She testified that while
4 she had not met or observed D.S., her review of his records
5 convinced her that a general education setting was not
6 appropriate for him. She stated that all parties present at the
7 CSE meeting agreed with that assessment, and that the IEP
8 therefore required specialized schooling with the addition of
9 twelve months of related services.
10 Dr. Bowser endorsed the 6:1:1 placement, explaining
11 that a small class size was required because D.S. "must be
12 carefully supervised at all times during the day, because he [is]
13 unaware of danger." M.S. J.A. at 55-56. However, Bowser later
14 conceded that she did not know of any program other than 6:1:1
15 that the DOE could offer to autistic children, thereby implying
16 that she did not consider whether a 1:1 program might be more
17 appropriate. She further stated that the related services were
18 all necessary, explaining that although D.S. would receive fewer
19 hours of in-home services, he would be receiving similar services
20 in the classroom setting, so that "in effect, he would be getting
21 more services." Id. at 60.
22 Dr. Bowser conceded that the CSE team had incorporated
23 goals for D.S. that had been photocopied from the prior year's
24 plan, but stated that they had discussed "every goal," and
34 1 determined that each was still appropriate because it had not yet
2 been met. Id. at 61. Dr. Bowser further stated that she had
3 reviewed the evaluations from D.S.'s treating doctors and
4 therapists, and that she agreed with most of them but disagreed
5 with one doctor's recommendation that D.S. required attention
6 seven days a week.
7 Alex Campbell, a special education teacher with seven
8 years' experience and training in various methodologies including
9 ABA, TEACCH, and PECS, also testified. Campbell, who would have
10 been D.S.'s teacher had D.S. attended public school, testified
11 that 6:1:1 learning can be appropriate for autistic children
12 because it can provide them with both individualized attention
13 and opportunities for group work. She said that there were four
14 autistic children in her class in 2007-08, all of them around
15 D.S.'s age, and that she maintained frequent and open
16 communication with all the students' parents by phone and by
17 notebook that was passed back and forth between school and home.
18 She reported that all the students progressed over the course of
19 the year.
20 The plaintiffs called several witnesses. Their first
21 was Dr. Weynert, D.S.'s program coordinator from 2005-2007.
22 According to Weynert, D.S. initially, in 2005, "presented . . .
23 really no notable functional skills. He engaged in extremely
24 high rates of self-stimulatory behaviors -- verbal and motor. He
35 1 was unable to . . . play with any toy in the way it was intended.
2 . . [A]ny object was used to engage in self-stimulatory
3 behaviors." Id. at 471. She testified that D.S. "had the
4 toughest time learning," but that after almost two years of
5 intensive 1:1 ABA therapy for up to 35 hours a week, and many
6 hours per week of related services, D.S. was able to "learn how
7 to learn." Id. at 474. He nonetheless remained non-verbal and
8 easily distracted, and continued to engage in high rates of self-
9 stimulatory behavior. Weynert opined that 1:1 instruction was
10 "absolutely" the proper course for D.S. Id. at 481.
11 Dr. Weynert also testified that at the June 2007 CSE
12 meeting, the committee engaged in no discussion of methodology
13 other than listening to Weynert's recommendation that D.S. be
14 provided ABA 1:1 instruction. With regard to D.S.'s related
15 services, Weynert testified that she "strongly, strongly advised
16 against" the reduction of D.S.'s various therapies, but that the
17 CSE told her that "[t]hat's [all] they could do." Id. at 493.
18 Weynert explained that 30-minute sessions would be unproductive
19 for D.S. because "to engage [him] takes some time. . . . And a
20 half an hour, by the time you sat down with him and really began
21 to do anything your session would be over." Id. at 494.
22 During her testimony, Weynert discussed the visit she
23 and L.S. had made to P.S. 94 to observe the class to which D.S.
24 had been assigned. She reported that the teacher had "minimal"
36 1 ABA training and that any ABA instruction was not tailored to the
2 individual children. She reported that the assistant teacher was
3 scolding a non-verbal child who was seeking attention rather than
4 helping him communicate. Weynert said that no data was being
5 collected on the children's behaviors and no "behavior reduction
6 plans" were in place. Id. at 499-500. She further testified
7 that she had visited BAC before D.S. enrolled there, and had been
8 impressed with that program. Weynert did concede, however, that
9 she had never observed D.S. himself in a BAC classroom.
10 The plaintiffs also called Jaime Nicklas, the BAC
11 director who also testified in P.H.'s due process hearing. She
12 explained that BAC offers full-time 1:1 ABA education to five
13 autistic students each year. While she acknowledged that ABA is
14 not the only methodology that can be used to educate children on
15 the autistic spectrum, id. at 569, she stated that it was the
16 most appropriate program for D.S. based on his "severe[]" autism
17 and his need for "intensive one on one services." Id. at 572.
18 Nicklas explained that during a typical day at BAC, D.S. would
19 work with five different instructors who would rotate between the
20 students to ensure that a child could generalize what he had
21 learned. He had opportunities to interact with mainstreamed
22 children during non-academic activities. BAC does not, however,
23 offer related services such as speech therapy in school.
24 Instead, the students receive those services at home. Id. at
37 1 608. Nicklas testified that D.S. has made "a lot of progress" at
2 BAC; his speech, while challenging, "is coming along," and "his
3 behaviors have gotten a lot better." Id. at 603. For example,
4 D.S. now "walks with his hands in his pockets. His tapping
5 behavior has decreased significantly"; "his awareness has seemed
6 to increase." Id.
7 Finally, L.S., D.S.'s mother, testified. In addition
8 to providing basic background information on D.S., she discussed
9 her experiences at the CSE meeting and observing the proposed
10 placement at P.S. 94. She said that at BAC, D.S. had continued
11 to learn to communicate using an augmentative device called a
12 Dyanvox, that his ability to identify shapes, items, and body
13 parts had increased, and that his motor and play skills had
14 improved.
15 By opinion dated October 22, 2008, the IHO rejected the
16 plaintiffs' challenge, concluding that the DOE had offered D.S. a
17 FAPE for the 2007-08 school year. As to the plaintiffs'
18 procedural complaints, while the IHO acknowledged that some of
19 the proceedings, including the DOE's practice of encouraging
20 parents to waive the participation of a parent member, were
21 troubling, the IHO thought that they did not rise to the level of
22 the denial of a FAPE. The IHO further found that L.S. was
23 provided sufficient opportunity to participate meaningfully in
24 the CSE meeting, and that the limited involvement of the general
38 1 education teacher was not material in light of the agreement by
2 all CSE members that general education was not appropriate for
3 D.S.
4 The IHO was also untroubled by the IEP's wholesale
5 importing of D.S.'s goals from the previous year. In the IHO's
6 view, those goals remained appropriate in light of the testimony
7 that D.S. learned very slowly.
8 As for the plaintiffs' objections to the substance of
9 the IEP, the IHO concluded that the 6:1:1 class was
10 "substantively appropriate and calculated for [D.S.] to make
11 educational progress." M.S. v. N.Y.C. Dep't of Educ., Special
12 Appendix ("M.S. S.P.A.") at 78. Specifically, the IHO cited Dr.
13 Bowser's testimony explaining the rationale for placing D.S. in a
14 6:1:1 setting, including that it would "address[] a lot of the
15 issues that were being brought up in the IEP," and would "enable
16 [D.S.] to make some success, improve his skills, and get
17 individualized assistance, with people who understand autism."
18 Id. at 79. The IHO was persuaded that the CSE committee had
19 "looked very carefully at [D.S.'s] need to be carefully
20 supervised at all times," and had taken that into account in
21 assigning him to a class with one teacher and one
22 paraprofessional. Id.
23 With regard to the reduction in D.S.'s related
24 services, the IHO noted that D.S. had received the IEP-authorized
39 1 services during the 2007-08 school year in the amounts specified
2 in the IEP, and that L.S. testified that D.S. nonetheless had
3 made progress. The IHO therefore concluded that the parents were
4 "precluded from making the argument that the [related services]
5 amount recommended [was] inappropriate." Id. at 83.
6 With regard to methodology, the IHO decided that
7 although the people treating D.S. all recommended that he
8 continue in 1:1 ABA, "the people who recommended it believed that
9 it was the only methodology that worked and were not open to
10 other approaches." Id. at 84. The IHO cited the testimony of
11 Weynert and Nicklas to support this conclusion. Id. But the IHO
12 also noted that an IEP "need not specify or provide one type of
13 methodology," but that it "must provide for specialized
14 instruction in the child's areas of need." Id. The IHO was
15 satisfied that D.S.'s IEP met that requirement. Id. Finally,
16 the IHO rejected the parents' argument that the P.S. 94 teachers
17 were not "sufficiently trained and knowledgeable regarding
18 [D.S.'s] needs." Id. at 85. The IHO concluded that the evidence
19 amply supported the finding that the teachers were qualified.
20 For the foregoing reasons, the IHO denied the parents
21 reimbursement for the $80,000 BAC tuition. Id.
22 The parents, M.S. and L.S., appealed the IHO's decision
23 to an SRO. By decision dated January 9, 2009, the SRO dismissed
24 the appeal. Id. at 65. After summarizing the factual and
40 1 procedural history at some length, the SRO briefly considered the
2 parties' arguments. He first addressed the IEP's alleged
3 procedural defects, concluding that, "[b]ased on the hearing
4 record and the particular facts before [him], and upon a complete
5 and independent review of the hearing record, [he was] not
6 persuaded that the [IHO] erred in finding . . . that the student
7 was offered a FAPE for the 2007-08 school year." Id. at 65. The
8 SRO did not discuss any of the procedural or substantive
9 arguments individually, instead rehearsing the language of the
10 regulations implementing the IDEA and then stating that he
11 "f[ound] no need to modify the [IHO's] decision." Id. In light
12 of this conclusion, the SRO, like the IHO, did not reach the
13 question whether BAC was an appropriate unilateral placement.
14 Id.
15 On May 8, 2009, the plaintiffs filed a complaint in the
16 United States District Court for the Southern District of New
17 York seeking review of the SRO's decision. The district court
18 judge to whom the case was assigned, Hon. Lewis A. Kaplan,
19 referred the case to Magistrate Judge James C. Francis IV for
20 further proceedings, including a Report and Recommendation on any
21 dispositive motion. See Report & Recommendation, M.S. & L.S. v.
22 N.Y.C. Dep't of Educ., 09 Civ. 4454 (LAK)(JCF) (S.D.N.Y. Mar. 12,
23 2010), ECF No. 25 ("R&R"). By motions filed on October 21, 2009,
24 the parties cross-moved for summary judgment.
41 1 On March 12, 2010, the magistrate judge recommended
2 that the district court deny the plaintiffs' motion and grant the
3 DOE's, thereby leaving in place the IHO's findings that the DOE
4 provided D.S. with a FAPE for 2007-08. R&R at 1. The magistrate
5 judge set forth in the R&R a detailed factual history of the
6 case, summarizing the testimony before the IHO. He then turned
7 to the issue he thought dispositive: the degree of deference owed
8 to administrative decision makers in IDEA cases. Id. at 34-35.
9 He found this case to be indistinguishable from Grim for purposes
10 of determining the standard-of-review. There, we concluded that
11 the IDEA "strictly limit[s] judicial review of state
12 administrative decisions." R&R at 34 (quoting Grim, 346 F.3d at
13 380-81). He noted Grim's instruction that "the sufficiency of
14 goals and strategies in an IEP is precisely the type of issue
15 upon which the IDEA requires deference to the expertise of
16 administrative officers." Id. at 36 (quoting Grim, 346 F.3d at
17 382). With this in mind, the magistrate judge determined that he
18 was required to defer "to administrative decisions on most issues
19 relating to educational policy, whether or not they are
20 controversial." Id. He said that although
21 a court would be adept at determining if [the 22 CSE] properly made [a determination about how 23 to educate a child], . . . this Circuit 24 leaves little room to analyze substantive 25 deficiencies in the evidence presented by the 26 DOE at the hearing. Instead, case law 27 appears to indicate that as long a[s] the DOE
42 1 is able to produce an expert to support its 2 position at a hearing and receives a positive 3 determination by at least one of the 4 administrative officers, the DOE's position 5 is nearly assured victory in the federal 6 courts.
7 Id. at 36-37 (citations omitted). The magistrate judge
8 "question[ed] whether the degree of deference to educational
9 administrators required by Grim[] and other Second Circuit cases
10 is consistent with the intent of Congress when it passed the
11 IDEA," but concluded that he was "nonetheless bound by those
12 decisions." Id. at 41.
13 The magistrate judge then addressed the merits of the
14 plaintiffs' arguments. As for the plaintiffs' procedural
15 challenges to the IEP, he noted that he was required to defer "to
16 the determinations of the SRO and IHO regarding the prejudicial
17 impact" of any procedural irregularities, id. at 43 (desribing
18 Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 426
19 (S.D.N.Y. 2007), aff'd, 293 F. App'x 20 (2d Cir. 2008)), even
20 though he thought it "unclear why such deference is appropriate,
21 given that determining procedural compliance with the IDEA does
22 not appear to require expertise in the field of education," R&R
23 at 43-44.
24 With regard to the composition of the CSE, the
25 magistrate judge concluded that any error in urging L.S. to waive
26 the presence of a parent member did not rise to the level of
43 1 denying D.S. a FAPE. Id. at 44-46. As for the parents' argument
2 that "they were denied meaningful participation in the
3 development of D.S.'s IEP because the CSE failed to rely on
4 current evaluations of D.S.," id. at 46, he concluded that
5 "[a]lthough the plaintiffs' claims . . . are troubling, they do
6 not establish impermissible predetermination [of the IEP] in view
7 of Dr. Bowser's testimony and the deference afforded SRO and IHO
8 determinations under this Circuit's precedent," id. at 48.
9 On the last alleged procedural error, the incorporating
10 of D.S.'s goals from the prior year into the 2007-08 IEP, the
11 magistrate judge expressed "skepticism that all 22 pages of goals
12 and short-term objectives were reviewed in the course of [the]
13 45-minute [CSE] meeting that was not solely focused on this
14 information," but concluded that the court "[could not] disagree
15 with the IHO's ultimate conclusion." Id. at 50.
16 Turning to the plaintiffs' challenge to the substantive
17 adequacy of the IEP, the magistrate judge "agree[d] with the
18 plaintiffs that it is doubtful that D.S.'s IEP was sufficiently
19 individualized [and] . . . share[d] their concern that D.S. would
20 not progress at P.S. 94." Id. at 54. He nevertheless thought
21 himself "constrained to defer to the determination of the IHO and
22 SRO" that the IEP was substantively appropriate, id. at 55,
23 despite the testimony by "[t]hose who had met and evaluated
24 [D.S., who] insisted that he required 1:1 ABA therapy in order to
44 1 progress." Id. at 54. In reluctantly reaching this conclusion,
2 the magistrate judge wrote: "[I]t is curious that experts with
3 experience working with the child at issue [i.e., D.S.'s
4 examining doctors, therapists and SEIT instructor] do not receive
5 similar deference" to the administrative review officers. Id. at
6 55.
7 The plaintiffs filed objections to the R&R. By order
8 dated May 14, 2010, however, the district court adopted the R&R
9 in its entirety. See Order, M.S. & L.S. v. N.Y.C. Dep't of
10 Educ., 09 Civ. 4454 (LAK)(JCF) (S.D.N.Y. May 14, 2010), ECF. No.
11 32. The court noted that it "differ[ed] from the magistrate
12 judge only as to the suggestion that he might have decided the
13 matter differently but for feeling constrained by the degree of
14 deference owed to administrative decisions in this context under
15 established Second Circuit precedent." Id. In the district
16 court's view, "[i]t [was] entirely unnecessary for [it] to
17 express any view on that question." Id. The court therefore
18 granted the defendant's motion for summary judgment.
19 DISCUSSION
20 I. Deference Owed to Administrative Findings
21 "Our standard for reviewing a state's administrative
22 decisions in IDEA cases is . . . well established." T.Y. v.
23 N.Y.C. Dep't of Educ., 584 F.3d 412, 417 (2d Cir. 2009), cert
24 denied, 130 S. Ct. 3277 (2010). "The responsibility for
45 1 determining whether a challenged IEP will provide a child with an
2 appropriate public education rests in the first instance with
3 administrative hearing and review officers. Their rulings are
4 then subject to 'independent' judicial review." Walczak, 142
5 F.3d at 129. Nonetheless, "the role of the federal courts in
6 reviewing state educational decisions under the IDEA is
7 'circumscribed.'" Gagliardo, 489 F.3d at 112; see also Grim, 346
8 F.3d at 380-81 (interpreting the IDEA as "strictly limiting
9 judicial review of state administrative decisions"). A reviewing
10 court "must engage in an independent review of the administrative
11 record and make a determination based on a 'preponderance of the
12 evidence.'" Gagliardo, 489 F.3d at 112; see also Rowley, 458
13 U.S. at 206. But such review "is by no means an invitation to
14 the courts to substitute their own notions of sound educational
15 policy for those of the school authorities which they review."
16 Rowley, 458 U.S. at 206.
17 "To the contrary, federal courts reviewing
18 administrative decisions must give 'due weight' to these
19 proceedings, mindful that the judiciary generally 'lacks the
20 specialized knowledge and experience necessary to resolve
21 persistent and difficult questions of educational policy.'"
22 Gagliardo, 489 F.3d at 113 (quoting Rowley, 458 U.S. at 206, 208)
23 (brackets omitted); see also Walczak, 142 F.3d at 129 ("While
24 federal courts do not simply rubber stamp administrative
46 1 decisions, they are expected to give 'due weight' to these
2 proceedings . . . .") (citation omitted). District courts are
3 not to make "subjective credibility assessment[s]," and cannot
4 "ch[oose] between the views of conflicting experts on . . .
5 controversial issue[s] of educational policy . . . in direct
6 contradiction of the opinions of state administrative officers
7 who had heard the same evidence." Grim, 346 F.3d at 383. As the
8 Supreme Court has said, "once a court determines that the
9 requirements of the Act have been met, questions of methodology
10 are for resolution by the States." Rowley, 458 U.S. at 208.
11 Courts generally "defer to the final decision of the
12 state authorities, even where the reviewing authority disagrees
13 with the hearing officer." A.C. ex rel. M.C. v. Bd. of Educ. of
14 the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 171 (2d Cir. 2009)
15 (quoting Karl ex rel. Karl v. Bd. of Educ. of Geneseo Cent. Sch.
16 Dist., 736 F.2d 873, 877 (2d Cir. 1984)) (internal quotation
17 marks omitted). "If the SRO's decision conflicts with the
18 earlier decision of the IHO, the IHO's decision may be afforded
19 diminished weight." A.C., 553 F.3d at 171 (internal quotation
20 marks omitted); see also Gagliardo, 489 F.3d at 114 n.2 (same).
21 "Deference is particularly appropriate when . . . the state
22 hearing officers' review has been thorough and careful."
23 Walczak, 142 F.3d at 129. The SRO's or IHO's factual findings
24 must be "reasoned and supported by the record" to warrant
47 1 deference. Gagliardo, 489 F.3d at 114. And in our review of a
2 district court's decision under the IDEA, deference to
3 "administrative proceedings is particularly warranted where . . .
4 the district court's decision was based solely on the
5 administrative record." A.C., 553 F.3d at 171.
6 These principles are more easily stated by appellate
7 courts, even if at some length, than they are applied by district
8 courts, as the cases before us illustrate. The district court in
9 M.H. repeatedly quoted to our language in Gagliardo that a state
10 administrative finding does not merit deference unless it is
11 "reasoned and supported by the record," 489 F.3d at 114. See,
12 e.g., M.H., 712 F. Supp. 2d at 154, 157, 161, 163. The
13 magistrate judge in M.S., by contrast, articulated a highly
14 restricted standard of review, relying in particular on Grim to
15 decide that "as long a[s] the DOE is able to produce an expert to
16 support its position at a hearing and receives a positive
17 determination by at least one of the administrative officers, the
18 DOE's position is nearly assured victory in the federal courts."
19 R&R at 37.
20 The Supreme Court has only considered the standard of
21 review in these circumstances once. In Rowley, the district
22 court had held, contrary to New York school administrative
23 officers whose decisions it was reviewing, that the child, a deaf
24 student, had not been provided with a FAPE. Rowley v. Bd. of
48 1 Educ. of Hendrick Hudson Cent. Sch. Dist., 483 F. Supp. 528, 529
2 (S.D.N.Y. 1980). According to the district court, the school
3 district had not given the student "an opportunity to achieve
4 [her] full potential commensurate with the opportunity provided
5 to other children." Id. at 534. The Court of Appeals affirmed.
6 Rowley v. Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., 632
7 F.2d 945, 946 (2d Cir. 1980).
8 The Supreme Court reversed. It observed that
9 "[n]oticeably absent from the language of the statute is any
10 substantive standard prescribing the level of education to be
11 accorded handicapped children." Rowley, 458 U.S. at 189. In
12 light of Congressionally expressed intent to provide disabled
13 children with some educational opportunity, however, the Court
14 concluded that the Act provided only for a "'basic floor of
15 opportunity' . . . consist[ing] of access to specialized
16 instruction and related services which are individually designed
17 to provide educational benefit to the handicapped child." Id. at
18 201.
19 The Court then considered the meaning of the provisions
20 governing the district court's resolution of civil complaints
21 brought under the Act. The parents had argued that the Act's
22 reference to courts deciding issues based upon a preponderance of
23 the evidence means that the Act requires "de novo review over
24 state educational decisions and policies." Id. at 205. The
49 1 State countered that courts "are given only limited authority to
2 review for state compliance with the Act's procedural
3 requirements and no power to review the substance of the state
4 program." Id.
5 The Supreme Court found neither view persuasive.
6 Congress had substituted the "independent decision based on a
7 preponderance of the evidence" language for "language that would
8 have made state administrative findings conclusive if supported
9 by substantial evidence." Id. at 205 (brackets omitted).
10 Therefore, Congress clearly intended for courts to have some
11 independent ability to review the decisions of administrative
12 officers. Id. The fact that Congress had placed emphasis on the
13 procedural protections afforded parents and children, however,
14 "demonstrates the legislative conviction that adequate compliance
15 with the procedures prescribed would in most cases assure much if
16 not all of what Congress wished in the way of substantive content
17 in an IEP." Id. at 206. For this reason, "the provision that a
18 reviewing court base its decision on the 'preponderance of the
19 evidence' is by no means an invitation . . . to substitute [its]
20 own notions of sound educational policy for those of the school
21 authorities which [it] review[s]." Id.
22 The Rowley Court continued: "The fact that [the IDEA]
23 requires that the reviewing court 'receive the records of the
24 [state] administrative proceedings' carries with it the implied
50 1 requirement that due weight shall be given to these proceedings."
2 Id. (second alteration in original).
3 Congress' intention was not that the Act 4 displace the primacy of States in the field 5 of education, but that States receive funds 6 to assist them in extending their educational 7 systems to the handicapped. Therefore, once 8 a court determines that the requirements of 9 the Act have been met, questions of 10 methodology are for resolution by the States. 11 Id. at 208.
12 With this framework in place, the Court decided that
13 review should proceed on two levels: First, the district court
14 should ask whether the State has complied with the "procedures
15 set forth by the act." Id. at 206. And, second, the court
16 should decide whether "the individualized educational program
17 developed through the Act's procedures [is] reasonably calculated
18 to enable the child to receive educational benefits." Id. at
19 206-07.
20 Rowley left many issues unresolved, including: How
21 much weight is "due" to the administrative rulings? Is there a
22 difference between administrative rulings that appear grounded in
23 findings of fact and those based on conclusions of law? Is there
24 a different level of deference owed to questions of procedural
25 compliance as opposed to substantive compliance? And how should
26 courts treat a question of appropriate educational methodology
51 1 that is bound up with a determination of whether the requirements
2 of the Act have been met?
3 In Walczak, we considered a district court's decision,
4 contrary to the determinations of state and local administrative
5 officers, that the school district had not provided an IEP that
6 was adequate to permit the disabled child to "make educational
7 and social progress." Walczak, 142 F.3d at 123. We sought to
8 determine how a federal court could conduct an "independent"
9 review pursuant to the IDEA without "impermissibly meddling in
10 state educational methodology." Id. at 130 (internal quotation
11 marks omitted). We concluded that at least in cases where the
12 substantive adequacy of the IEP is challenged, the district
13 court's review is limited to an examination of "'objective
14 evidence' indicating whether the child is likely to make progress
15 or regress under the proposed plan." Id. In Walczak there was
16 no objective evidence that the student had regressed, but there
17 was clear evidence of achievement, including her advancement to a
18 higher-level mathematics workbook. Id. at 131; see also Frank G.
19 v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)
20 (applying "objective evidence" standard to determine whether a
21 parent's placement of a child in private school was appropriate),
22 cert. denied, 552 U.S. 985 (2007). There was, therefore,
23 insufficient evidence to support the district court's rejection
24 of the administrative findings.
52 1 In Grim we considered the district court's
2 determination that two IEPs developed for a student in two
3 successive school years were substantively and procedurally
4 flawed. Grim, 346 F.3d at 380. First, we observed that Rowley's
5 requirement that courts give "due weight" to administrative
6 bodies implementing the statute applied to both "substantive" and
7 "procedural" challenges. Id. at 382-83. Then we concluded that
8 the district court had not applied the proper standard of review
9 in rejecting the IHO's and SRO's findings that the IEPs were
10 appropriate.
11 [The district court] justified its conclusion 12 by finding that '[n]either the IHO nor the 13 SRO [reviewing the . . . IEPs] gave 14 appropriate consideration to the experts on 15 dyslexia, who had personal knowledge of the 16 student in question.' Accordingly, in 17 violation of Rowley, the District Court 18 impermissibly chose between the views of 19 conflicting experts on a controversial issue 20 of educational policy -- effective methods of 21 educating dyslexic students -- in direct 22 contradiction of the opinions of state 23 administrative officers who had heard the 24 same evidence. 25 Id. at 383 (citation omitted; second and third brackets in
26 original). We therefore decided that a district court must defer
27 to administrative determinations involving educational
28 methodology even where they address the question of whether the
29 state has provided the student with the basic floor of
30 opportunity that the Act requires. Id.
53 1 In Gagliardo, we considered a district court's
2 conclusion that the school district's placement of a child in a
3 private school was inappropriate even though state administrative
4 officers had deemed it appropriate. Gagliardo, 489 F.3d at 106-
5 07. The district court had based its determination on one
6 expert's statement that the child needed a school setting that
7 was "therapeutic or supportive," even though that same expert had
8 later explained that the "thrust of his recommendation . . . was
9 that [the child] be placed in a school where trained
10 professionals could work closely with him and assist him as
11 issues associated with his disorder surfaced throughout the day."
12 Id. at 114 (emphasis omitted). We thought that reasoning to be
13 flawed. Id. Although the district court had addressed the
14 interpretation of the meaning of expert testimony, as opposed to
15 a dispute over methodology, we nonetheless concluded that the
16 district court owed the findings of the administrative hearing
17 officer deference. The officer had considered the testimony and
18 issued a decision that was "reasoned and supported by the
19 record." Id. It therefore should not have been disturbed by the
20 district court. Id.
21 The parties and amici urge us to articulate a bright-
22 line standard to be applied by district courts in reviewing state
23 administrative decisionmaking in IDEA cases. See, e.g., M.H.,
24 Council of Parent Attys. & Advocates Amicus Br. 5 (suggesting
54 1 that the court should "(1) review legal conclusions of
2 administrative decisions de novo without giving due weight to the
3 administrative decisions; (2) review mixed questions of law and
4 fact, such as whether the school district offered a FAPE, de novo
5 without giving due weight to the administrative decisions; (3)
6 give due weight to the factual findings of the administrative
7 decisions that are supported by the preponderance of the
8 evidence; and (4) defer to the educational policies recommended
9 by school officials if the court determine[s] that [the] school
10 district complied with the requirements of the Act"). Rowley and
11 subsequent decisions of this Court favor a different approach,
12 however.
13 Rowley left unresolved the question of the weight due
14 administrative determinations because that weight will vary based
15 on the type of determination at issue. Pursuant to statute, the
16 district court must base its decision on "the preponderance of
17 the evidence." 20 U.S.C. § 1415(i)(2)(C)(iii). This analysis is
18 complicated, though, by the fact that it occurs in the context of
19 a complex statutory scheme involving institutional actors at
20 different levels and within different branches of state and
21 federal government.
22 As the First Circuit has explained, the standard for
23 reviewing administrative determinations "requires a more critical
24 appraisal of the agency determination than clear-error
55 1 review . . . but . . . nevertheless[] falls well short of
2 complete de novo review. . . . [I]n the course of th[is]
3 oversight, the persuasiveness of a particular administrative
4 finding, or the lack thereof, is likely to tell the tale." Lenn
5 v. Portland Sch. Comm., 998 F.2d 1083, 1086-87 (1st Cir. 1993)
6 (internal citations omitted).
7 We agree. In many determinations made by
8 administrative officers, the district court's analysis will hinge
9 on the kinds of considerations that normally determine whether
10 any particular judgment is persuasive, for example whether the
11 decision being reviewed is well-reasoned, and whether it was
12 based on substantially greater familiarity with the evidence and
13 the witnesses than the reviewing court. But the district court's
14 determination of the persuasiveness of an administrative finding
15 must also be colored by an accute awareness of institutional
16 competence and role. As the Supreme Court made clear in Rowley,
17 the purpose of the IDEA is to provide funding to states so that
18 they can provide a decent education for disabled students
19 consistent with their traditional role in educating their
20 residents. Rowley, 458 U.S. at 208 n.30; cf. Schaffer, 546 U.S.
21 at 53 ("The core of the statute. . . is the cooperative process
22 that it establishes between parents and schools."). In policing
23 the states' adjudication of IDEA matters, the courts are required
56 1 to remain conscious of these considerations in determining the
2 weight due any particular administrative finding.
3 By way of illustration, determinations regarding the
4 substantive adequacy of an IEP should be afforded more weight
5 than determinations concerning whether the IEP was developed
6 according to the proper procedures. See Cerra, 427 F.3d at 195.
7 Decisions involving a dispute over an appropriate educational
8 methodology should be afforded more deference than determinations
9 concerning whether there have been objective indications of
10 progress. Compare Grim, 346 F.3d at 382-83, with Walczak, 142
11 F.3d at 130. Determinations grounded in thorough and logical
12 reasoning should be provided more deference than decisions that
13 are not. See id. at 129. And the district court should afford
14 more deference when its review is based entirely on the same
15 evidence as that before the SRO than when the district court has
16 before it additional evidence that was not considered by the
17 state agency.
18 II. Issues for Judicial Review
19 The "IDEA established a two-part inquiry for courts
20 reviewing [state] administrative determinations" under the IDEA.
21 Grim, 346 F.3d at 381. First, the court asks whether "the State
22 complied with the procedures set forth in the Act." Id.
23 Second, the court asks whether the IEP "developed through the
24 Act's procedures [is] reasonably calculated to enable the child
57 1 to receive educational benefits." Id. (quoting Rowley, 458 U.S.
2 at 206-07). If an IEP is deficient -- either procedurally or
3 substantively -- the court then asks "whether the private
4 schooling obtained by the parents [for the child] is appropriate
5 to the child's needs." T.P., 554 F.3d at 252. In answering this
6 third question, "equitable considerations relating to the
7 reasonableness of the action taken by the parents are relevant."
8 Id. (alteration and internal quotation marks omitted).
9 A. Procedural Compliance
10 "The initial procedural inquiry is no mere formality."
11 Walczak, 142 F.3d at 129. It acts as "'a safeguard against
12 arbitrary or erroneous decisionmaking.'" Evans v. Bd. of Educ.
13 of Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 (S.D.N.Y.
14 1996) (quoting Daniel R.R. v. State Bd. of Educ., 874 F.2d 1036,
15 1041 (5th Cir. 1989)). Of course, not every procedural error
16 will render an IEP legally inadequate. Grim, 346 F.3d at 381-82.
17 Relief is warranted only if the alleged procedural inadequacies
18 "(I) impeded the child's right to a [FAPE]; (II) significantly
19 impeded the parents' opportunity to participate in the
20 decisionmaking process regarding the provision of [a FAPE] to the
21 parents' child; or (III) caused a deprivation of educational
22 benefits," 20 U.S.C. § 1415(f)(3)(E)(ii).
23 Under the IDEA and its implementing regulations, an IEP
24 must contain: (1) the student's present levels of academic
58 1 achievement and functional performance; (2) measurable annual
2 goals for the child; (3) the method used to measure the student's
3 progress toward those goals; (4) the special education and
4 related services that the IEP recommends; (5) an explanation of
5 the extent to which the student will be educated with
6 "nondisabled" peers; (6) the reasons for any alternate
7 assessments; and (7) the start date for recommended services,
8 their duration, and their frequency. 20 U.S.C. § 1414(d)(1)(A);
9 8 NYCRR tit. 8 § 200.4(d)(2).
10 Specifically with respect to the goals that must be
11 included in any IEP, the IDEA and its regulations require that
12 the IEP include short-term and long-term academic and non-
13 academic goals for each student, as well as evaluative procedures
14 for measuring a student's progress in achieving the short- and
15 long-term goals contained in the IEP. See 20 U.S.C.
16 § 1414(d)(1)(A)(i)(III) (directing that IEP include "a
17 description of how the child's progress toward meeting the annual
18 goals . . . will be measured"); 34 C.F.R. § 300.320(a)(2)-(3);
19 NYCRR tit. 8, § 200.4(d)(2)(ii).
20 B. Substantive Compliance
21 The IDEA does not itself articulate any specific level
22 of educational benefits that must be provided through an IEP.
23 The "'appropriate' education" mandated by IDEA does not require
24 states to "maximize the potential of handicapped children."
59 1 Rowley, 458 U.S. at 189-90, 196 n. 21. (quotation marks omitted).
2 The purpose of the Act was instead "more to open the door of
3 public education to handicapped children on appropriate terms
4 than to guarantee any particular level of education once inside."
5 Id. at 192; accord Walczak, 142 F.3d at 130; Lunceford v. Dist.
6 of Columbia Bd. of Educ., 745 F.2d 1577, 1583 (D.C. Cir. 1984)
7 (Ruth Bader Ginsburg, then-Judge)(because public "resources are
8 not infinite," federal law "does not secure the best education
9 money can buy; it calls upon government, more modestly, to
10 provide an appropriate education for each [disabled] child."
11 (emphasis omitted)).
12 C. Appropriateness of Alternative Placement
13 Parents who think that the state has failed to provide
14 their child with a FAPE as required under the IDEA, 20 U.S.C.
15 § 1412(a)(1)(A), may pay for private services and seek
16 reimbursement from the school district for "'expenses that it
17 should have paid all along and would have borne in the first
18 instance had it developed a proper IEP.'" T.P., 554 F.3d at 252
19 (quoting Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471
20 U.S. 359, 370-71 (1985)).
21 In making a claim for reimbursement, "the burden shifts
22 to the parents to demonstrate that the school in which they have
23 chosen to enroll their child is appropriate." Gagliardo, 489
24 F.3d at 112. The educational program at the alternative
60 1 placement must be "reasonably calculated to enable the child to
2 receive educational benefit." Id. (quotation marks omitted).
3 However, "even where there is evidence of success [in the private
4 placement], courts should not disturb a state's denial of IDEA
5 reimbursement where . . . the chief benefits of the chosen school
6 are the kind of . . . advantages . . . that might be preferred by
7 parents of any child, disabled or not." Gagliardo, 489 F.3d at
8 115. Rather, the "unilateral private placement is only
9 appropriate if it provides education instruction specifically
10 designed to meet the unique needs of a handicapped child." Id.
11 (emphasis in original; quotation marks omitted).
12 III. Analysis of Claims in M.H.
13 A. Prefatory Observation
14 The district court in M.H. had before it the
15 conclusions of two different administrative officers, the IHO and
16 the SRO, who came to opposite conclusions as to the procedural
17 and substantive adequacy of the IEP at issue. In following
18 Grim's instruction as to the deference owed to such
19 administrative decisions by the court because of the
20 administrators' "expertise" in such matters, Grim, 346 F.3d at
21 382, the district court thus had available to it sharply
22 conflicting administrative views. As we will see, in reviewing
23 the SRO's decision, the court often relied on the carefully
24 articulated contrary observations, insights, and conclusions of
61 1 the IHO. We think that to have been entirely proper. See A.C.,
2 553 F.3d at 171.
3 Where the IHO and SRO disagree, reviewing courts are
4 not entitled to adopt the conclusions of either state reviewer
5 according to their own policy preferences or views of the
6 evidence; courts must defer to the reasoned conclusions of the
7 SRO as the final state administrative determination. However,
8 when (as here) the district court appropriately concludes that
9 the SRO's determinations are insufficiently reasoned to merit
10 that deference, and in particular where the SRO rejects a more
11 thorough and carefully considered decision of an IHO, it is
12 entirely appropriate for the court, having in its turn found the
13 SRO's conclusions unpersuasive even after appropriate deference
14 is paid, to consider the IHO's analysis, which is also informed
15 by greater educational expertise than that of judges, rather than
16 to rely exclusively on its own less informed educational
17 judgment.
18 B. Procedural Compliance
19 The district court in M.H. concluded that the IEP was
20 procedurally deficient in its formulation of goals for P.H.
21 because the "annual academic goals and objectives stated on
22 P.H.'s IEP are based on P.H.'s expected grade level and not on
23 his actual needs and abilities." M.H, 712 F. Supp. 2d. at 155.
24 In so concluding, the court deferred to the IHO's determination,
62 1 but declined to defer to the SRO's findings to the contrary
2 because they were not, in the district court's opinion, "thorough
3 and careful." Id. at 162 (internal quotation marks omitted).
4 Although the IHO based her decision on both the annual academic
5 goals and the short-term non-academic objectives reflected by the
6 IEP, the SRO addressed only the annual academic goals.
7 The district court elaborated:
8 [t]he upshot of the IHO's determination is 9 that the short-term objectives were generic 10 because they were not modified to reflect the 11 change in the grade level on P.H.'s annual 12 goals. By reversing only on the basis that 13 the annual goals were not generic, the SRO 14 failed to consider the IHO's more important 15 finding that the short-term objectives were 16 generic. 17 Id. at 154. In the district court's view, "the substance of the
18 short-term objectives was necessarily central to the IHO's
19 decision" that the IEP was procedurally flawed. Id.
20 The district court also found wanting the IEP's short-
21 term objectives, the "vast majority" of which lack "measurement
22 statement[s]" by which evaluators could track P.H.'s progress.
23 Id. at 156. The court again declined to defer to the SRO, who
24 was satisfied with the short-term objectives, because "the SRO
25 failed to address the measurability of P.H.'s academic goals,
26 which formed the entire basis for the IHO's conclusion." Id.
27 (emphasis in original). The SRO based his conclusion instead on
28 "'a review of P.H.'s non-academic goals,' and 'goals and short-
63 1 term objectives relating to P.H.'s social/emotional needs.'" Id.
2 at 156-57 (brackets omitted; emphases in original). The district
3 court concluded that the IHO's decision, which found the short-
4 term objectives to be deficient, rather than the SRO's, merited
5 deference because it was "reasoned and supported by the record."
6 Id. at 157 (quoting Gagliardo, 489 F.3d at 114).
7 The district court also adopted the IHO's conclusion --
8 based on a specific factual finding -- that the non-academic
9 goals contained in the IEP were too advanced for P.H., declining
10 to defer to the SRO's "conclusory" reversal of the IHO on this
11 point. Id. at 158. The SRO had stated only that the goals
12 "'comprehensively addressed [P.H.'s] needs in'" the relevant
13 areas. Id. (quoting IHO report).
14 The district court rejected the plaintiffs' challenges
15 to the adequacy of the IEP's evaluative schedule for academic and
16 non-academic goals, and the evaluative criteria for P.H.'s short-
17 term objectives, concluding that the SRO's findings on these
18 points were "entitled to deference." Id. at 156.
19 The DOE argues that the IEP team "formulated
20 appropriate annual goals and objectives" for P.H., "along with
21 detailed short-term goals," and, further, that even if the goals
22 were not appropriate, they "could be reviewed and, if needed,
23 adjusted throughout the approaching school year." M.H.
24 Appellant's Br. 47. The DOE also points out that the IEP
64 1 contained thirteen pages of annual goals and short term
2 objectives, contending that they were "reflective of [P.H.'s]
3 needs and thus would have provided appropriate benchmarks for
4 [him] in the 2007-2008 school year." Id. at 49.
5 The parents respond that the IEP's goals for P.H. were
6 not individualized because they were crafted with a rising first-
7 grader in mind; they were not changed when Ms. Jordan learned
8 that P.H. was in fact entering kindergarten. M.H. Appellee's Br.
9 14-15. The plaintiffs further argue that the district court was
10 not required to defer to the SRO because the SRO's conclusions
11 were "unsupported by the record as a whole and incorrect as a
12 matter of law . . . ." Id. at 39 (internal quotation marks
13 omitted).
14 The district court's decision to disagree with the SRO
15 was proper. This was not a situation in which the court credited
16 the conclusions that were most consistent with its own subjective
17 analysis. See, e.g., W.T. & K.T. ex rel. J.T. v. Bd. of Educ. of
18 The Sch. Dist of N.Y.C., 716 F. Supp. 2d 270, 289 (S.D.N.Y. 2010)
19 ("In light of the uncontradicted testimony, . . . the SRO's
20 finding . . . is entitled to deference."); Connor ex rel. I.C. v.
21 N.Y.C. Dep't of Educ., No. 08-cv-7710-LBS, 2009 WL 3335760, at
22 *4, 2009 U.S. Dist. LEXIS 98605, at *14 (S.D.N.Y. Oct. 13, 2009)
23 (deferring to the SRO on a procedural issue where "nothing in the
24 record suggests any reason to diverge" from the SRO's
65 1 determination). Rather, the court assessed whether the SRO's
2 conclusions were grounded in a "thorough and careful" analysis.
3 Walczak, 142 F.3d at 129. The court rejected them only when it
4 found that they were not supported by a preponderance of the
5 objective evidence.
6 With respect to the IEP goals not being individualized,
7 the IHO noted that CSE coordinator Giselle Jordan herself
8 testified that she wrote the goals with a rising first-grader in
9 mind and did not alter them once she learned P.H. should be
10 starting kindergarten. On the other hand, the SRO noted only
11 that P.H.'s Bracken Score (one of many evaluative tools) was
12 within the average range for his age, and therefore drew the
13 conclusion that any goals listed as appropriate to kindergartners
14 must have been appropriate for P.H.
15 The district court thought the SRO's conclusion to be
16 poorly reasoned. We agree. There does not appear to be any
17 doubt that kindergarten level goals were appropriate for P.H. To
18 be sure, when Ms. Jordan learned at the CSE meeting that P.H. was
19 entering kindergarten, she crossed out "1st grade" and changed it
20 to "kindergarten" for all of P.H.'s annual academic goals. The
21 question is whether, because Jordan did not also alter the short-
22 term objectives to make them appropriate for kindergarten instead
23 of first grade, the IEP's short-term academic objectives were
24 inappropriate. See, e.g., M.H. J.A. 1214 (annual goals and
66 1 short-term objectives). The SRO ignored this issue despite the
2 fact that it was the linchpin of the IHO's conclusion that the
3 academic goals in the IEP were insufficiently individualized to
4 P.H. and did not accurately reflect his special education needs.
5 M.H., 712 F. Supp. 2d at 154.
6 The IHO's conclusions were further supported by
7 testimony from Nicklas that the short-term goals for P.H. were
8 unattainable. She pointed out, for example, that P.H. was
9 reading one word at a time, and that he would thus be unable to
10 meet short-term objectives such as "distinguish[ing] between fact
11 and fiction," "predict[ing] outcomes," and "identify[ing] the
12 effect of a certain action." M.H. J.A. 511. In light of the
13 IHO's thorough analysis on this point and the SRO's failure to
14 consider it, the district court did not err.
15 With regard to the measurability of the IEP's goals,
16 the SRO focused on non-academic ones including the "student's
17 needs in [occupational therapy, physical therapy], speech-
18 language therapy, social interaction, play, communication and
19 socialization, and adaptive physical education," concluding that
20 although the annual goals lacked specificity, the short-term
21 goals were sufficiently "detailed and measurable," and that they
22 "cured any deficiencies in the annual goals." Id. at 1374. The
23 SRO cited several of the short-term objectives in the IEP, which
24 contained either phrases like "teacher observation" to indicate
67 1 how the observer is to measure P.H.'s progress. Id.; see also
2 id. at 1211-13 (pages from the IEP). As the district court
3 noted, however, the SRO ignored the fact that the "vast majority
4 of objectives in the IEP . . . do not contain any such
5 measurement statement." M.H., 712 F. Supp. 2d at 156; id. at
6 156-57 (stating that "only 17 of the IEP's 85 short-term
7 objectives contain an evaluation procedure, and, most
8 importantly, not one of the academic short-term objectives
9 mentions an evaluation procedure.") (emphasis added).
10 New York State regulations require an IEP to specify
11 "evaluative criteria, evaluation procedures and schedules to be
12 used to measure progress toward meeting the annual goal." NYCRR
13 tit. 8, § 200.4(d)(2)(iii)(b). Any short-term objective must
14 also be "measurable." Id. at § 200.4(d)(2)(c)(iv).
15 We agree with the district court's decision not to
16 defer to the SRO's determination that the IEP provided sufficient
17 evaluation procedures for the IEP's goals and objectives. The
18 SRO failed to consider P.H.'s short-term academic objectives at
19 all beyond a conclusory view that all of the "79 short-term
20 objectives" addressed the "student's needs" and that the
21 "majority of the . . . short-term objectives were both detailed
22 and measurable," M.H. J.A. 1374 (emphasis added). He only
23 provided a detailed analysis of the "short-term objectives
24 relating to the student's social/emotional needs." Id. And
68 1 although the SRO stated that many of the short-term non-academic
2 goals "could be observed and measured," in reviewing the more
3 than eighty short-term objectives referred to in the IEP, only
4 fifteen expressly referred to "teacher observation" as an
5 evaluation procedure. None of the academic short-term objectives
6 had any express evaluation procedure.
7 We also agree with the district court's decision to
8 rely on the IHO's conclusion that the non-academic goals were not
9 suited to P.H.'s needs and that some were too advanced for P.H.
10 That decision is supported by the evidence in the record,
11 including the testimony of Dr. Nicklas and M.H. The SRO, on the
12 other hand, did no more than state summarily that the goals
13 "comprehensively addressed the student's needs in th[e] areas."
14 M.H. J.A. 1374. The SRO failed to point to contrary evidence
15 that he deemed more compelling. Had he done so, the district
16 court might have properly deferred to the SRO's analysis of the
17 IEP's goals and objectives. But the SRO's conclusory statement
18 does not evince thorough and well-reasoned analysis that would
19 require deference.
20 We therefore affirm the district court's conclusion
21 that the IEP did not comply with the procedural requirements of
22 the IDEA and that P.H. was denied a FAPE as a result.
69 1 C. Substantive Adequacy
2 1. Methodology Evidence
3 The IEP's substantive compliance with the IDEA depends
4 on a threshold issue upon which the IHO and the SRO disagreed:
5 whether the reviewing officers could consider the evidence
6 related to the various methodologies for teaching autistic
7 children, including ABA and TEACCH. A parent of a disabled child
8 initiates the impartial review process by filing a notice
9 including "complaint[s] . . . with respect to any matter relating
10 to the identification, evaluation, or educational placement of
11 the child, or the provision of a [FAPE] to such child." 20
12 U.S.C. § 1415(b)(6)(A). The IDEA provides that "[t]he party
13 requesting the due process hearing shall not be allowed to raise
14 issues at the due process hearing that were not raised in the
15 notice . . . unless the other party agrees otherwise." 20 U.S.C.
16 § 1415(f)(3)(B).
17 The plaintiffs do not dispute that they did not raise
18 the issue of teaching methodologies in the impartial hearing
19 request. However, the IHO did consider the question in issuing
20 her opinion. And much of the testimony presented by both parties
21 to the IHO related to the question of whether ABA or TEACCH was
22 better for P.H. The SRO determined that the IHO should not have
23 considered the issue, because the plaintiffs had waived it by
24 omitting the discussion from their hearing request. M.H. J.A.
70 1 1372-73 ("[T]he impartial hearing officer exceeded her
2 jurisdiction in making a determination which was not properly
3 before her.").
4 The district court disagreed. M.H., 712 F. Supp. 2d at
5 151-52. The court noted that at the hearing before the IHO, it
6 was the DOE that introduced the issue of methodology -- first in
7 its opening statement, and then in the questioning of its first
8 witness, Ms. Jordan. Id. at 149. The court therefore decided
9 that the plaintiffs could not "fairly be barred from rebutting
10 [the DOE's] testimony with evidence of the appropriateness of
11 [the] methodologies, and the DOE [could not] genuinely claim that
12 it was prejudiced by the IHO's consideration of such evidence."
13 Id. at 150.
14 The DOE appeals from the district court's conclusion on
15 this point, arguing that the concept of "opening the door," upon
16 which the district court relied, is inapplicable in the context
17 of IDEA due process hearings. It submits that the concept
18 "should not be confused with a jurisdictional limitation, or with
19 a statutory requirement for the consent of the opposing party."
20 M.H. Appellant's Br. 57. The DOE further contends that it did no
21 more than "[s]ubmit[] evidence that [was] relevant to an issue
22 properly before the hearing officer," viz., the appropriateness
23 of the IEP's recommended placement. Id. at 56. The DOE contends
24 that it never agreed to submit the "different issue" of whether
71 1 only the ABA methodology was appropriate for P.H. to the IHO.
2 Id. (emphasis in original). The DOE suggests that it should have
3 been able to elicit evidence regarding the teaching methodologies
4 because such evidence was relevant to demonstrating that the
5 6:1:1 placement provided to P.H. was appropriate to his needs,
6 but that the parents should not have been able to submit their
7 own evidence that only ABA instruction would be effective for
8 P.H.
9 We agree with the district court and the parents that
10 it would be unfair to permit the DOE to argue that its
11 recommended placement for P.H. was appropriate because it offered
12 "various teaching methods," and that the parents' placement was
13 inappropriate because it "offers [only] one type of intervention,
14 . . . which is [ABA]," M.H. J.A. 27-29, but then to bar the
15 parents from contending that the schooling offered in the IEP was
16 inappropriate for P.H. precisely because it offered "various"
17 methodologies, most of which would not work for their son.
18 In other words, it does not follow from the fact that
19 the DOE bears the burden of demonstrating that the IEP provides a
20 FAPE that it should be permitted to argue issues outside the
21 scope of the due process complaint without "opening the door" for
22 the plaintiffs. The parents, in their complaint letter,
23 challenged the substantive sufficiency of the IEP offered to
24 their son. The DOE chose to respond by arguing that the IEP's
72 1 placement was better in part because it utilized multiple
2 methodologies. In these circumstances, the statute does not bar
3 the parents from contesting the appropriateness of the
4 methodologies offered in the IEP's recommended program.
5 2. The Substance of the IEP
6 The SRO and IHO disagreed on the substantive
7 sufficiency of the IEP. The IHO concluded that the IEP failed to
8 provide a FAPE because the IEP recommended very little ABA
9 therapy, which had been shown by testimony at the hearing to be
10 "imperative. . . to prevent [P.H.'s] regression." M.H. J.A.
11 1357. After excluding the parents' methodology evidence, the SRO
12 reversed the IHO, concluding that the 6:1:1 program "was
13 appropriate to meet the needs of [P.H.]." M.H. J.A. 1375. But
14 the SRO compared the IEP-recommended program only to general
15 education; he did not explain why it was more appropriate than
16 either 12:1:1 instruction, which the DOE offers, or 1:1
17 instruction.
18 The district court again declined to defer to the SRO.
19 The court observed that although the SRO excluded the parents'
20 methodology evidence, which, in the district court's words,
21 "tended to show that P.H. required a methodology employing a 1:1
22 student-teacher ratio," M.H., 712 F. Supp. 2d at 161, the SRO had
23 considered "the DOE's methodology evidence tending to show that
24 the methodologies available within a 6:1:1 program were
73 1 affirmatively appropriate for P.H.," id. The court then stated
2 that the IHO had considered "not only the same evidence that the
3 SRO considered but also the substantial amount of methodology
4 evidence introduced by Plaintiffs." Id. The court deferred to
5 the IHO, not the SRO, "find[ing] no reason to disagree with her
6 decision, particularly because she considered all the evidence
7 presented to her and because the weights she assigned to
8 conflicting evidence were undoubtedly influenced by her
9 educational expertise." Id. (citing Grim, 346 F.3d at 382). The
10 court concluded by opining that "[t]he SRO's decision would have
11 merited such deference had it included consideration of all the
12 evidence in the record." Id.
13 The DOE contends that "even if the methodology
14 allegation had been properly presented in the complaint letter,
15 the IHO should not have considered it," because "decisions
16 regarding the best methodology to utilize in teaching special
17 education students . . . should be made by teachers, not by the
18 courts." M.H. Appellant's Br. 59 (citing Rowley, 458 U.S. at
19 207, 210). According to the DOE, administrative officers and
20 courts are limited to deciding the issue of "whether the
21 placement provided the student an appropriate FAPE, not whether
22 the methodology offered in the school the parents preferred was
23 superior to that offered in the public school." Id. at 59-60.
74 1 The parents reply that the DOE mistakenly "attempts to
2 separate the method of instruction from the appropriateness of
3 that instruction." M.H. Appellee's Br. 35. They argue that the
4 IDEA "expressly permits courts to consider the 'content,
5 methodology, [and] delivery of instruction['] to determine
6 whether a FAPE has been offered to a child with special needs,"
7 id. at 38 (quoting 34 C.F.R. § 300.39(a)(1), although the quoted
8 text is in § 300.39(b)(3), as part of the definition of
9 "specially designed instruction") (alterations in original). The
10 parents also contend that the 6:1:1 program recommended in the
11 IEP was not appropriate for P.H. both because even though it was
12 within a mainstream school building, it actually provided fewer
13 opportunities to interact with mainstream peers than BAC (even as
14 an institution specializing in educating children with autism),
15 and because the testimony and reports by all of P.H.'s treating
16 doctors and by his SEIT indicated that he could not learn
17 successfully in a 6:1:1 environment.
18 We agree with the district court that the SRO's
19 decision, which took only the DOE's evidence into account, does
20 not warrant deference in this regard. The IHO's discussion of
21 the substantive adequacy of the IEP, while brief, clearly
22 explained that the IHO concluded that the key failing of the IEP
23 was its failure to account for Dr. Salsberg's report -- dated two
24 months before the relevant hearing of the CSE -- that P.H.
75 1 required intensive 1:1 instruction. Although courts should
2 generally defer to the state administrative hearing officers
3 concerning matters of methodology, the SRO's failure to consider
4 any of the evidence regarding the ABA methodology and its
5 propriety for P.H. is more than an error in the analysis of
6 proper educational methodology. It is a failure to consider
7 highly significant evidence in the record. This is precisely the
8 type of determination to which courts need not defer,
9 particularly when the evidence has been carefully considered and
10 found persuasive by an IHO.
11 D. Appropriateness of the Unilateral Placement
12 Once it is determined that the program offered by an
13 IEP will not "enable the child to receive educational benefits,"
14 Cerra, 427 F.3d at 192 (quotation marks omitted), the burden
15 shifts to the parents to demonstrate that the school in which
16 they have chosen to enroll their child is appropriate.
17 Gagliardo, 489 F.3d at 112. Although their unilateral placement
18 need not "meet the IDEA definition of a [FAPE]," Frank G., 459
19 F.3d at 364, as would a program provided by the public school
20 system, it must be "reasonably calculated to enable the child to
21 receive educational benefits," id. (quotation marks omitted).
22 However, "even where there is evidence of success [in the private
23 placement], courts should not disturb a state's denial of IDEA
24 reimbursement where . . . the chief benefits of the chosen school
76 1 are the kind of . . . advantages . . . that might be preferred by
2 parents of any child, disabled or not." Gagliardo, 489 F.3d at
3 115. Rather, the "unilateral private placement is only
4 appropriate if it provides education instruction specifically
5 designed to meet the unique needs of a handicapped child." Id.
6 (emphasis in original; quotation marks omitted).
7 In this case, the SRO did not reach the question of the
8 appropriateness of BAC as a private placement for P.H. M.H. J.A.
9 1376. The district court therefore deferred to the IHO, whose
10 conclusions the court found to be "well reasoned and supported by
11 the evidence." M.H., 712 F. Supp. 2d at 165. The IHO was
12 satisfied that the parents had shown that BAC met P.H.'s needs.
13 She relied on, inter alia, the testimony of BAC director Nicklas
14 and on the data provided by BAC documenting P.H.'s progress. In
15 confirming the IHO's opinion, the district court also rejected
16 the DOE's three reasons for deciding that BAC "should be
17 considered inappropriate for P.H." M.H., 712 F. Supp. 2d at 164.
18 First, the DOE argued that the BAC records showed that
19 "BAC was not actually addressing P.H.'s deficits," specifically
20 his handwriting and gross-motor-skills lessons. Id. The
21 district court noted that Nicklas's and Jordan's testimony
22 contradicted each other on this point, and that it was for the
23 IHO to weigh the credibility of each expert's testimony. Id.
77 1 Second, the DOE argued that BAC was too restrictive
2 because P.H. was not educated with mainstream peers. Id. at 165
3 (citing, inter alia, P. ex rel. Mr. & Mrs. P. v. Newington Bd. of
4 Educ. (Newington), 546 F.3d 111, 120 (2d Cir. 2008)). Under the
5 Newington test, when evaluating whether a student's placement is
6 the least restrictive environment possible, as required by the
7 IDEA, "a court should consider, first, whether education in the
8 regular classroom, with the use of supplemental aids and
9 services, can be achieved satisfactorily . . . , and, if not,
10 then whether the school has mainstreamed the child to the maximum
11 extent appropriate." Newington, 546 F.3d at 120 (quotation marks
12 omitted). The district court noted that the parties agreed that
13 P.H. "would not have benefi[t]ted from placement in a regular
14 classroom." M.H., 712 F. Supp. 2d at 165. Citing the IHO's
15 "well reasoned" conclusion that "discrete-trial ABA was the
16 appropriate methodology for educating P.H.," the court deferred
17 to the IHO's finding that BAC was not too restrictive for P.H.
18 Id.
19 Third, the district court rejected the DOE's argument
20 that BAC was inappropriate because the school did not provide
21 related services on-site, relying upon the IHO's conclusion to
22 that effect and upon the fact that "parents are entitled to more
23 flexibility in their choice of placement than [is] the DOE." Id.
78 1 at 166. The court also noted that the IHO had considered and
2 rejected precisely the same argument. Id.
3 The DOE contends again on appeal that the parents
4 failed to establish that BAC was appropriate. Specifically, it
5 reasserts that BAC did not provide related services to P.H.
6 during the school day, and that the IHO ignored this factor in
7 finding the school appropriate. M.H. Appellant's Br. 64-65. The
8 DOE argues that in order to be appropriate, a private placement
9 must provide "an educational program and the necessary support
10 services to appropriately meet [P.H.'s] special education needs."
11 Id. at 65 (citing, inter alia, Frank G., 459 F.3d at 364-65).
12 The DOE further contends that the BAC program was more
13 restrictive than necessary, and that P.H. would have had more
14 opportunities to interact with mainstream peers at P.S. 94. Id.
15 at 67-68.
16 The parents concede that BAC does not offer related
17 services during the school day, but argue that the placement
18 nevertheless was appropriate because BAC met P.H.'s educational
19 needs and gave him more access to mainstream peers than P.S. 94
20 would have. Further, they say, P.H. would have received related
21 services "at a separate location," even under the IEP's
22 recommended program, rendering BAC's alleged shortcoming
23 immaterial. M.H. Appellee's Br. 49-52. With regard to related
24 services, the parents contend that BAC offered all of the
79 1 services P.H. needed to receive educational benefits, and his
2 related services could be "provided at any time of day." Id. at
3 51. The plaintiffs also argue that in any event, the IHO's
4 opinion on this issue warranted deference, and that the DOE's
5 argument to the contrary asks the court to "[a]ssign[] new
6 weight[] to the evidence" that the IHO already reviewed, which is
7 "precisely what a court avoids when it conducts a modified de
8 novo review . . . ." Id. at 54 (internal quotation marks
9 omitted).
10 In Gagliardo, we concluded that the parents' unilateral
11 placement was inappropriate because the chosen school "did not
12 provide the special education services specifically needed" by
13 the student -- that is, the "therapeutic setting" the student
14 required to "reasonably assure that he would receive educational
15 benefits as required by Rowley." Gagliardo, 489 F.3d at 113,
16 114. Here, it appears that although the related services do to
17 some extent enhance P.H.'s learning ability, there is nothing in
18 the record to suggest that it is necessary that they be provided
19 during the school day in order for P.H. to receive appropriate
20 benefit from them.
21 The DOE also cites Green v. N.Y.C. Dep't of Educ., No.
22 07 Civ. 1259 (PKC), 2008 WL 919609, 2008 U.S. Dist. LEXIS 32118
23 (S.D.N.Y. Mar. 31, 2008), in which the district court affirmed
24 the IHO's and SRO's conclusion that the unilateral placement was
80 1 not appropriate. Id. at *8, 2008 U.S. Dist. LEXIS 32118, at *23.
2 In reaching that conclusion, the Green court noted that "[i]t is
3 appropriate for the hearing officers and the Court" to take into
4 consideration the fact that the parents obtained necessary
5 services not offered through the selected school from an outside
6 agency. Id. at *7, 2008 U.S. Dist. LEXIS 32118 at *19. This may
7 indeed be an appropriate consideration, but it is not necessarily
8 dispositive. Here, the absence of related services at BAC does
9 not require a finding that BAC was inappropriate.
10 With regard to mainstreaming opportunities for P.H.,
11 the record suggests that they were not abundant at the
12 alternative placement, P.S. 94. Indeed, P.H. likely would have
13 had more exposure to and interaction with mainstream peers at
14 BAC. The DOE argues that opportunities for mainstreaming would
15 be greater at P.S. 94, because the special education placement
16 there shares a building with a mainstream public school.
17 However, as we have noted, according to P.H.'s father, M.H., the
18 P.S. 94 teacher, Oliva Cebrian, told him that the mainstream
19 children who share the P.S. 15 building with P.S. 94 students are
20 "not particularly welcoming to the special ed[ucation] kids."
21 M.H. J.A. 729. As a result, the special education children use a
22 separate entrance to the school, eat in a separate cafeteria, and
23 do not share academic classes. Id. By contrast, although P.H.
24 participated in a special education-only class at BAC, the
81 1 facility is also located within a mainstream school, and P.H.
2 participated in two non-academic classes with mainstream
3 children. Unlike the situation at P.S. 94, the BAC students also
4 share a school entrance, hallways, and playtime with non-disabled
5 peers.
6 In light of this unrebutted evidence, the district
7 court properly agreed with the IHO's conclusion that BAC was an
8 appropriate unilateral placement for P.H.
9 E. Equitable Considerations
10 Finally, both administrative review officers and courts
11 are required to evaluate the equities in considering a tuition
12 reimbursement claim. Florence County Sch. Dist. Four v. Carter
13 ex rel. Carter, 510 U.S. 7, 12 (1993). In this case, the SRO did
14 not reach the issue, although the IHO had done so. The IHO found
15 "that equitable considerations support tuition reimbursement."
16 Id. 1357. The IHO noted that "the parents have cooperated with
17 the CSE. They provided private evaluations, participated in the
18 IEP meeting, visited the proposed placement and provided timely
19 notice of their intent to place the student in a private school."
20 Id. The district court agreed. It also identified "other
21 evidence in the record" that supports the IHO's conclusion, M.H.,
22 712 F. Supp. 2d at 167, including that "the DOE was less than
23 forthcoming about the nature of P.H.'s recommended placement,"
24 id., that the plaintiffs were not provided the opportunity to
82 1 meaningfully participate in the CSE meeting, id., and that the
2 DOE subsequently "consistently stonewalled M.H.'s inquiries into
3 the appropriateness" of the school, id. at 168. The DOE does not
4 appear to contest the district court's or IHO's evaluation of
5 this evidence on appeal.12 We agree with the district court's
6 analysis on this point.
7 IV. Analysis of Claims in M.S.
8 The plaintiffs in M.S. contest both the procedural and
9 the substantive adequacy of their son's IEP. Central to their
10 argument is the assertion that the magistrate judge overstated
11 the degree to which he was required to defer to the decisions of
12 the administrative hearing officers. Although we agree that the
13 magistrate judge was too deferential to the State's adjudication
14 process, we think that application of the proper standard of
15 review requires the same outcome.
16 A. Procedural Compliance
17 The parents asserted before the district court that the
18 "development of the IEP was procedurally deficient [first]
12 We take no position on whether anything short of total reimbursement for P.H.'s private tuition at BAC would have been appropriate under the Supreme Court's decision in Carter, 510 U.S. at 16 ("Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable."), had the DOE identified before the state administrative officers or the district court particular services provided by BAC that the district considered unnecessary to the provision of a FAPE (and for which reimbursement was therefore not required) or had otherwise shown that only a portion of P.H.'s tuition cost should be reimbursed.
83 1 because the parent waived the inclusion of a parent member in the
2 CSE under duress, and the absence of such a participant in the
3 meeting denied the plaintiffs active participation in the
4 development of the IEP." Id. (internal quotation marks omitted).
5 The district court adopted the magistrate judge's recommendation
6 that it accept the IHO's and SRO's conclusion that even if D.S.'s
7 parent waived the presence of a parent member at the CSE meeting
8 under less than ideal circumstances, the "parent still
9 participated in the development of the IEP." Because of that
10 participation, the magistrate judge concluded, any violation did
11 not "rise to a denial of [a] FAPE." Id. (internal quotation marks
12 omitted). The magistrate judge noted that "courts have upheld
13 parents' waivers of the participation of a parent member under
14 similar circumstances," and recommended that the court do so in
15 this case, too. Id. at 45. The magistrate judge did not suggest
16 that this recommendation was influenced by his understanding of
17 the deference required by Grim and this Court's other related
18 decisions. The district court adopted this reasoning.13
19 The parents offer no evidence of duress other than
20 their own testimony, id., which the IHO heard and found
13 Because the district court adopted the more thorough reasoning of the Magistrate Judge in the Report and Recommendation, in this section we refer mainly to the R&R. But, of course, we are here reviewing the decision of the district court adopting the R&R.
84 1 unpersuasive on this point, id. at 44.14 Without any other
2 evidence in the record to the contrary, the Court must defer to
3 the IHO and SRO's findings, which were grounded in credibility
4 determinations made by the IHO after hearing the relevant
5 testimony.
6 Second, the parents contend the DOE violated the IDEA's
7 requirement that an IEP include measurable goals that are
8 appropriate for the child's development by photocopying goals
9 from a prior IEP. The parents assert that it is impossible for
10 the CSE team to have reviewed all of the photocopied goals in
11 light of the shortness of the meeting and especially Pearl's late
12 arrival. Only 25 to 30 minutes were left for the CSE to review
13 seventeen pages of goals and "discuss[] and intentionally
14 preserve[]" each one. M.S. Appellants' Br. 49. The DOE contends
15 to the contrary that the photocopy was, as the IHO found,
16 "'insignificant,'" "especially given that the 'record was replete
17 with testimony as to D.S.'s very slow learning style,' which
18 would render past information, particularly information that was
19 gathered only a few months prior to the CSE, still very
20 accurate." M.S. Appellee's Br. at 43 (brackets omitted).
21 The IDEA requires that an IEP be "updated annually," 20
22 U.S.C. § 1414(d)(1)(A)(i)(VIII), and revised "as appropriate," 20
14 The SRO did not specifically address the issue.
85 1 U.S.C. § 1414(d)(4)(A)(ii), see also Schroll v. Bd. of Educ.
2 Champaign Cmty. Unit. Sch. Dist. #4, No. 06-2200-DGB, 2007 WL
3 2681207, at *4-*5, 2007 U.S. Dist. LEXIS 62478, at *12 (C.D. Ill.
4 Aug. 10, 2007) ("An IEP is not inappropriate simply because it
5 does not change significantly on an annual basis[, but] . . . if
6 the student made no progress under a particular IEP in a
7 particular year, . . . the propriety of an identical IEP in the
8 next year may be questionable.").
9 We agree with the magistrate judge that the
10 photocopying of the goals was "disturbing." R&R at 49. But the
11 IHO's determination that the photocopy remained sufficient for
12 purposes of arriving at D.S.'s IEP appears to have been based in
13 part on the DOE's witnesses who explained that the goals,
14 although a year old, nonetheless remained appropriate for the
15 child. Dr. Bowser testified that D.S.'s general academic goals
16 had been discussed at the CSE meeting, and that at least one goal
17 was revised after the CSE meeting, when it became clear that
18 "there was one goal that was either unclear or he had met." M.S.
19 J.A. 151. Bowser also testified that some of the goals were
20 photocopied from D.S.'s last CPSE (that is, his pre-school CSE)
21 meeting, which had taken place only a few months prior to the CSE
22 meeting. In light of that testimony and without more evidence
23 that the photocopied goals were no longer appropriate for D.S.,
24 we agree with the district court's deference to the IHO, who had
86 1 the benefit of hearing and weighing witness testimony on the
2 issue.
3 The plaintiffs' contention that they were not afforded
4 the opportunity adequately to participate in the CSE meeting also
5 fails. At the meeting, D.S.'s parents discussed D.S.'s ability
6 to learn effectively in a 6:1:1 classroom setting. They provided
7 the CSE with additional private evaluations of D.S. As the IHO
8 rightly observed, these reports were noted on the IEP checklist,
9 which indicated that they had been reviewed. But even assuming
10 to the contrary that the school district failed to review these
11 outside reports, we disagree with the appellants' contention that
12 D.S.'s IEP therefore failed to reflect his then-current needs.
13 The record evidence demonstrates that D.S.'s IEP incorporated
14 performance reports that were more recent than those submitted by
15 the appellants at the CSE meeting.
16 Finally, the appellants suggest that the school
17 district predetermined D.S.'s placement in a 6:1:1 classroom. We
18 disagree. In Deal ex rel. Deal v. Hamilton County Bd. of Educ.,
19 392 F.3d 840 (6th Cir. 2004), cert. denied, 546 U.S. 936 (2005),
20 the Sixth Circuit held that the plaintiffs were denied meaningful
21 participation in the IEP process because the school district
22 "never even treated a one-on-one ABA program as a viable option."
23 Id. at 858. In T.P. ex rel. S.P. v. Mamaroneck Union Free Sch.
24 Dist., 554 F.3d 247 (2d Cir. 2009), we expressly distinguished
87 1 Deal. We observed that "the school district [in Deal] had
2 consistently rejected parent requests for intensive ABA and told
3 the parents that 'the powers that be' were not implementing such
4 programs." Id. at 253 (quoting Deal, 392 F.3d at 855-56). Here,
5 the only evidence indicating that such a policy was in place was
6 Bowser's testimony that as far as she knew, only 6:1:1 programs
7 were provided by the district. This testimony is a far cry from
8 the evidence that troubled the court in Deal. In light of the
9 district's broad discretion to adopt programs that, in its
10 educational judgment, are most pedagogically effective, we cannot
11 simply assume that the decision to rely heavily on a single
12 method or style of instruction is necessarily inappropriate.
13 Bowser's testimony does not tend to establish that the district
14 would not consider a 1:1 placement in an appropriate case.
15 Absent such evidence, the only issue here is whether the
16 district's proposed placement was insufficient to provide a FAPE
17 to D.S.
18 B. Substantive Adequacy
19 The plaintiffs also challenge the IEP's substantive
20 adequacy because, they argue, the IHO ignored evidence
21 demonstrating that the IEP was not individualized to meet D.S.'s
22 needs and thus failed to consider the record as a whole. The
23 record as a whole, they say, showed that D.S. required ABA 1:1
24 therapy to progress.
88 1 As the IHO acknowledged, Dr. Bowser testified that she
2 chose the 6:1:1 program for D.S. instead of the ABA program
3 because it would provide careful supervision while addressing the
4 needs and deficiencies that were outlined in his IEP. Dr. Bowser
5 recognized that D.S. was a non-verbal child with significant
6 deficiencies, including low intellectual functioning, and
7 difficulties with social interactions. She also stated that the
8 team that formed D.S.'s IEP chose the 6:1:1 classroom program
9 with these deficiencies in mind. Alex Campbell, the special
10 education teacher in charge of the 6:1:1 class to which the IEP
11 had assigned D.S., also reviewed D.S.'s IEP and testified that
12 she had worked with students with similar deficiencies during the
13 2007-08 school year, and that those students had progressed
14 toward their IEP goals.
15 The proposed 6:1:1 classroom, moreover, provided a
16 transition program for students who had only had ABA therapy.
17 Susan Cruz, the assistant principal at P.S. 15, testified that a
18 student such as D.S. would transition to a setting with multiple
19 methodologies through a program targeted toward his specific
20 needs and experiences with ABA.
21 The IHO credited this testimony. She concluded that
22 the district had provided evidence of the "specifics as to the
23 appropriateness of [D.S.'s] recommended program and described how
24 he would have met his IEP goals and met the standard of achieving
89 1 educational benefits from the program." M.S. S.P.A. 80.
2 Further, the IHO credited Bowser's testimony that the CSE "wanted
3 [D.S.] to be in the classroom as much as possible and by having
4 the therapy within the school setting it would give the therapist
5 a chance to interact with the classroom teacher and transfer the
6 skills into the classroom setting." M.S. S.P.A. 79.
7 The magistrate judge disagreed with the IHO's
8 assessment, stating that "[t]he only people . . . who had met and
9 evaluated [D.S.] insisted that he required 1:1 ABA." R&R at 54.
10 However, the magistrate judge felt "constrained to defer to the
11 determination of the IHO and SRO," even on a question that he
12 thought called for the simple application of "typical judicial
13 experience," namely, whether the "IHO and SRO properly grappled
14 with the evidence before them." Id. at 55.
15 We need not consider the magistrate judge's expressed
16 views in this regard. The IHO's determination was based on his
17 assessment of the credibility of the witnesses testifying before
18 him, and his own understanding of educational methodology. See
19 Grim, 346 F.3d at 383. It was entitled to deference on that
20 basis.
21 The IHO was presented with conflicting evidence on the
22 question of methodology: Some witnesses testified that D.S.
23 would thrive in a 6:1:1 program utilizing methodologies other
24 than ABA. Others, including DOE evaluator Marion Pearl,
90 1 expressed the view that D.S. required 1:1 ABA therapy on a full-
2 time basis. The IHO appears to have given greater credence to
3 the witnesses who had not met D.S. because, in the IHO's view,
4 the witnesses who testified for D.S. did not approach the
5 possibility of his enrollment in a non-ABA program with an open
6 mind. While the court may have had doubts about the IHO's
7 credibility assessment, it did not have further evidence on the
8 basis of which to challenge this determination. And this
9 conclusion is further buttressed by the fact that the IHO's
10 determination concerned the substantive adequacy of the IEP, a
11 question requiring expertise on education of autistic children
12 and to which courts therefore should usually defer to
13 administrative decisionmakers. See Rowley, 458 U.S. at 208.
14 We would be remiss if we did not note that we deeply
15 respect and sympathize with M.S. and L.S.'s efforts on behalf of
16 their son and their desire to obtain the best possible treatment
17 for him under trying circumstances. But it has not been
18 established by a preponderance of the evidence that the IEP
19 offered to D.S. by the State was inappropriate -- that is, that
20 D.S. was denied a FAPE.
21 Because we conclude that D.S.'s IEP was procedurally
22 and substantively adequate, we need not consider whether his
23 private placement was appropriate.
91 1 CONCLUSION
2 For the foregoing reasons each of the judgments of the
3 district courts in these cases consolidated for purposes of
4 appeal is affirmed.
92 1 APPENDIX
2 Glossary of Acronyms
3 ABA Applied Behavior Analysis
4 BAC Brooklyn Autism Center
5 CPSE Department of Education's Committee on Preschool 6 Special Education
7 CSE Local Committee on Special Education
8 DOE New York City Department of Education
9 D.S. Son of plaintiffs M.S. and L.S.
10 E.I. New York's Early Intervention program 11 12 E.K. Plaintiff, mother of P.H.
13 FAPE Free Appropriate Public Education
14 FBA Functional Behavioral Assessment
15 IDEA Individuals with Disabilities Education Act, 20 16 U.S.C. § 1400 et seq.
17 IEP Individualized Education Program
18 IHO District's Impartial Hearing Officer
19 L.S. Plaintiff, mother of D.S. 20 21 M.H. Plaintiff, father of P.H.
22 M.H. J.A. M.H. Joint Appendix
23 M.S. Plaintiff, father of D.S.
24 M.S. J.A. M.S. Joint Appendix
25 M.S. S.P.A. M.S. Special Appendix
26 NYCRR N.Y. Comp. Codes R. & Regs.
1 1 PDD-NOS Pervasive Developmental Disorder Not Otherwise 2 Specified
3 PECS Picture Exchange Communication System
4 P.H. Son of plaintiffs M.H. and E.K. 5 6 R&R Report and Recommendation of the magistrate judge 7 in D.S.
8 SEIT Special Education Itinerant Teacher
9 SRO State Review Officer
10 TEACCH Treatment and Education of Autistic and Related 11 Communication-Handicapped Children, a method for 12 teaching people with autism.
Related
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