M.W. ex rel. S.W. v. New York City Department of Education

725 F.3d 131, 2013 WL 3868594, 2013 U.S. App. LEXIS 15328
CourtCourt of Appeals for the Second Circuit
DecidedJuly 29, 2013
DocketDocket No. 12-2720-cv
StatusPublished
Cited by115 cases

This text of 725 F.3d 131 (M.W. ex rel. S.W. v. New York City Department of Education) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
M.W. ex rel. S.W. v. New York City Department of Education, 725 F.3d 131, 2013 WL 3868594, 2013 U.S. App. LEXIS 15328 (2d Cir. 2013).

Opinion

WESLEY, Circuit Judge:

S.W. (“Dad”) and E.W. (“Mom”) enrolled M.W., their autistic child, in a private school after concluding that the New York City Department of Education’s (“DOE”) individualized education program failed to provide him with a free and appropriate public education as required by the Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. [135]*135§§ 1400 et seq. Subsequently, the Parents filed a due-process complaint against the DOE seeking tuition reimbursement. After twelve hearing days, an impartial hearing officer granted them that relief. The DOE appealed to a state review officer, who reversed that decision. The Parents then filed a civil action in United States District Court for the Eastern District of New York (Weinstein, J.), which affirmed the order denying tuition reimbursement. The Parents appeal principally contending that the individualized education program’s integrated co-teaching services violated the IDEA’S least restrictive environment mandate by placing their child in a classroom with as many as twelve other students who also had individualized education programs. We AFFIRM.

Background

I. The Legal Framework

The IDEA requires New York state to “provide disabled children with a free and appropriate public education (‘FAPE’).” R.E. v. N.Y. City Dep’t of Educ., 694 F.3d 167, 174-75 (2d Cir.2012) (citation omitted). Accordingly, the DOE, through a Committee on Special Education (“CSE”), must produce, in writing, an individualized education program (“IEP”), see 20 U.S.C. § 1414(d), that “describes the specially designed instruction and services that will enable the child to meet” stated educational objectives and is reasonably calculated to give educational benefits to the child. R.E., 694 F.3d at 175 (internal quotation marks and citation omitted). Should a parent believe that the school district breached these IDEA duties by failing to provide their disabled child a FAPE, the parent may unilaterally place their child in a private school at their own financial risk and seek tuition reimbursement. See Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 9-10, 16, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993).

To begin the tuition-reimbursement process, a parent must first file a due-process complaint which triggers an administrative-review process that begins with a hearing in front of an impartial hearing officer (“IHO”). See 20 U.S.C. § 1415(b)(6), (f); N.Y. Educ. L. § 4404(1). The three-pronged Burlington!Carter test, as construed by New York Education Law § 4404(l)(c), governs that hearing: (1) the DOE must establish that the student’s IEP actually provided a FAPE; should the DOE fail to meet that burden, the parents are entitled to reimbursement1 if (2) they establish that their unilateral placement was appropriate and (3) the equities favor them. See R.E., 694 F.3d at 184-85 (citing Carter, 510 U.S. at 7, 114 S.Ct. 361; Sch. Comm. of Town of Burlington v. Dep’t of Educ., 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985)). A state review officer (“SRO”) evaluates appeals from an IHO’s decision, see N.Y. Educ. Law § 4404(2), and either party may seek review of an SRO decision by [136]*136bringing a civil action in federal court, see 20 U.S.C. § 1415(i)(2)(A).

II. Statement of Facts

A. M.W.

M.W. is an autistic boy with Pervasive Developmental Disorder, Attention Deficit Hyperactivity Disorder, certain speech and language disorders, and fine and gross motor deficits. Despite these setbacks, M.W. has an average IQ; he is bright and can learn. His autism and developmental disorders, however, present behavioral and social-emotional problems that have resulted in academic under-performance and have required speech, occupational, and physical therapies. M.W. also requires direct, hands-on supervision during the school day from a paraprofessional, who helps him stay focused when his attention strays and calm in the event of a behavioral crisis.

After the Parents rejected the IEP for the 2009-2010 school year, M.W. attended Luria, a Montessori school, where he had the support of his full-time paraprofessional in a classroom designed for typically developing students. On January 30, 2010, Mom sent an email to Luria indicating a desire to re-enroll M.W. for the 2010-2011 school year before the CSE developed the contested IEP subject to this appeal. Shortly thereafter, Mom submitted an application to Luria which included a tuition contract and down payment to hold M.W.’s spot.

Luria teachers do not use formal assessments to track progress and rely on “a lot [of] note-taking and observation” to track the child’s progress. See Tr. 937. Though M.W. progressed socially during the 2009-2010 school year, he continued to have “a lot of behavioral issues that [we]re getting in the way of his progress” through the 2010-2011 school year. Id. at 921. When these behavioral issues disrupted the class, his paraprofessional removed him from the classroom to work with him outside, sometimes on the floor.2 Id. at 945-50.

B. M.W.’s Individualized Education Program

On June 10, 2010, the CSE convened to develop M.W.’s 2010-2011 IEP. The following individuals constituted the CSE: (1) Mom; (2) Sara Malasky, M.W.’s general education teacher, who participated via telephone; (3) Chanie Graus, a school psychologist who acted as a school-district representative; (4) a special education teacher; and (5) a parent representative. M.W. was seven years old, and the IEP was for his second-grade year, 2010-2011.

The IEP described M.W. as a seven-year-old autistic child of average intelligence with Pervasive Developmental Disorder. Despite his disorders, the IEP recognized that M.W. had “made progress [137]*137... in the area of peer interactions” and, during the previous year at Luria, M.W. had made Mends and was “able to participate in a continuous flow of back and forth interactions” with his peers. Sealed App’x 1847. The IEP, however, also noted that M.W. had significant self-regulation difficulties, became frustrated easily, and struggled to calm himself down in the event of a behavioral crisis. Id.

The IEP recommended placement in a general education environment with integrated co-teaching (“ICT”) services with a 12:1 staffing ratio, five days a week, for a ten-month school year.3 The IEP also provided M.W. with a fulltime behavioral management paraprofessional to give him one-on-one help self-regulating in times of behavioral crisis, and these other related services:

Service Sessions x Week Duration Students

1 Counseling 1 x week 30 mins. 3

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Erde v. Carranza
Second Circuit, 2025
Ogunleye v. Banks
S.D. New York, 2025
Zayas v. Banks
Second Circuit, 2025
Thomason v. Banks
S.D. New York, 2025
Perez v. Porter
S.D. New York, 2025
Rivas v. Ramos
Second Circuit, 2024
Erde v. Carranza
E.D. New York, 2024
Zimmerman v. Banks
S.D. New York, 2024
Polanco v. Banks
Second Circuit, 2024
Phillips v. Banks
Second Circuit, 2024
W. v. Poudre School District R-1
94 F.4th 1176 (Tenth Circuit, 2024)
Davis v. Banks
E.D. New York, 2023
Mason v. Carranza
E.D. New York, 2023
Davis v. Banks
S.D. New York, 2023
Melendez v. Porter
E.D. New York, 2023

Cite This Page — Counsel Stack

Bluebook (online)
725 F.3d 131, 2013 WL 3868594, 2013 U.S. App. LEXIS 15328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mw-ex-rel-sw-v-new-york-city-department-of-education-ca2-2013.