A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., No. 07-3694 (2d Cir. 2009)

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07-3694-cv A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist. 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 -------- 4 August Term, 2008 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 (Argued: December 3, 2008 Decided: January 16, 2009) 23 for the Southern District of New York (Brieant, J.) granting 24 summary judgment to Plaintiffs-Appellees. Docket No. 07-3694-cv -----------------------------------------------------------X A.C. and M.C., on behalf of M.C., Plaintiffs-Appellees, - v. BOARD OF EDUCATION OF THE CHAPPAQUA CENTRAL SCHOOL DISTRICT, Defendant-Appellant.* -----------------------------------------------------------X Before: JACOBS, Chief Judge, McLAUGHLIN and B.D. PARKER, Circuit Judges. Appeal from a judgment of the United States District Court 25 REVERSED and REMANDED. 26 27 28 29 30 31 32 33 GARY S. MAYERSON, Mayerson & Associates, New York, NY, for Plaintiffs-Appellees. MARK C. RUSHFIELD, Shaw, Perelson, May & Lambert, LLP, for DefendantAppellant. * The Clerk of the Court is directed to amend the official caption as set forth above. 1 McLAUGHLIN, Circuit Judge: 2 The Board of Education of the Chappaqua Central School 3 District ( Chappaqua ) appeals from a grant of summary judgment 4 to Plaintiffs A.C. and M.C. by the United States District Court 5 for the Southern District of New York (Brieant, J.). 6 M.C. sued under the Individuals with Disabilities Education Act 7 (the IDEA ), 20 U.S.C. §§ 1400 et seq., seeking reimbursement 8 for their learning-disabled child s private-school tuition. 9 A.C. and Dismissing Chappaqua s proposed plan for special-education 10 services for M.C. s fifth-grade year, the parents declined to 11 send their son M.C. to a public middle school in 2004-2005. 12 instead enrolled M.C. in the private Eagle Hill School and 13 requested an impartial due process hearing under the IDEA to 14 obtain tuition reimbursement from Chappaqua. 15 1415(f). 16 their claim, a State Review Officer ( SRO ) found that M.C. s 17 parents were not entitled to reimbursement. 18 pursued their claim in the United States District Court for the 19 Southern District of New York. 20 the parents and held that Chappaqua had violated both the 21 procedural and substantive requirements of the IDEA. 22 Accordingly, it granted summary judgment to the parents and They See 20 U.S.C. § Although an Impartial Hearing Officer ( IHO ) granted The parents then The district court agreed with 2 1 awarded them tuition reimbursement, as well as attorneys fees 2 and costs. 3 We reverse. BACKGROUND 4 5 M.C. attended pre-school through fourth grade in Chappaqua 6 public schools. 7 multiple disabilities, including Pervasive Developmental Disorder 8 and Autism. 9 IDEA to a free appropriate public education administered by 10 Chappaqua according to an Individualized Education Program 11 ( IEP ). 12 During this period, he was diagnosed with As a disabled child, M.C. was entitled under the See 20 U.S.C. §§ 1412(a)(1)(A) & 1414(d). During the 2003-2004 school year, M.C. attended a co- 13 taught fourth-grade class at Roaring Brook Elementary School. 14 In this class, M.C. was taught alongside non-disabled students, 15 with support provided by a special-education teacher for part of 16 the day and by a program assistant for the rest of the day. 17 Because M.C. had difficulty focusing, Chappaqua also provided him 18 with a personal aide, who would sit near him and keep his 19 attention on his work through the use of prompts and cues. 20 Occasionally the aide would bring M.C. to the school psychologist 21 when he engaged in out-of-context tangential or fantasy 22 speech, which involved the repetition of lines from television 23 programs or incoherent storytelling. 3 Chappaqua also provided 1 M.C. with additional math and reading instruction, occupational 2 and speech therapy, and summer programs. 3 Between March and July 2004, Chappaqua s Committee on 4 Special Education (the Committee ) met several times to discuss 5 M.C. s progress and formulate an IEP for M.C. s fifth-grade year 6 in 2004-2005. 7 placing M.C. in the Eagle Hill School, a private school for 8 disabled children. 9 an IEP providing for co-taught classes at a public middle school. 10 The IEP also provided for meetings with M.C. s parents every four 11 to six weeks where M.C. s progress, including the level of 12 prompting required, was to be discussed. 13 additional academic instruction; occupational and speech therapy; 14 psychiatric and psychological services; and summer programs. 15 IEP noted that M.C. required prompting to maintain focus, but 16 stressed the importance of developing M.C. s independence in 17 applying reading and math skills and following classroom 18 routines. 19 school, he no longer required prompting and an escort as had 20 previously been necessary. 21 speech, and that his [b]ehavior seriously interferes with 22 instruction due to frequent tuning out and inattention. 23 additional adult such as a program assistant is needed. M.C. s parents requested that Chappaqua consider The Committee declined to do so, and produced Other programs included Though M.C. would only use a private bathroom at The IEP noted M.C. s tangential 4 An The 1 Although not explicitly stated in the IEP, a personal aide would 2 again have been provided. 3 In August 2004, M.C. s parents informed the Committee that 4 they did not accept the 2004-2005 IEP and would enroll M.C. at 5 Eagle Hill. 6 reimbursement from Chappaqua for the cost of Eagle Hill. 7 contended that Chappaqua failed to offer a free appropriate 8 public education by, among other things, not providing for a 9 functional behavioral assessment ( FBA ) of M.C. They requested an administrative hearing to obtain They An FBA is the 10 process of determining why the student engages in behaviors that 11 impede learning and how the student s behavior relates to the 12 environment. 13 8 N.Y.C.R.R. § 200.1(r). Between March and July of 2005, an IHO conducted an 14 administrative hearing. The evidence at the hearing included 15 witness testimony and reports concerning evaluations of M.C. 16 neuropsychologist retained by the parents reported in January 17 2004 that M.C. would continue to require an aide if he were to 18 attend a public middle school. 19 Spring 2004 stressed the need for prompting to maintain M.C. s 20 focus. 21 agreed that M.C. had made progress. 22 indicated that M.C. had mastered 37 of 41 objectives set forth in 23 his 2003-2004 IEP, including the goal of independently following A Reports by Chappaqua staff in Both M.C. s speech pathologist and occupational therapist 5 A June 2004 progress report 1 classroom routines. 2 required 1:1 support for all observed activities. 3 An observation report indicated that M.C. Chappaqua s Director of Special Education and the school 4 psychologist testified that the personal aide and prompting had 5 successfully addressed M.C. s inattentive behavior. 6 Psychological and psychiatric services were recommended to assess 7 M.C. s tangential and fantasy speech. 8 that incidents of this speech requiring his involvement decreased 9 over the course of the 2003-2004 school year, and that M.C. had The psychologist testified 10 improved tremendously in terms of his ability just to be part of 11 the social environment. 12 learned to recognize and alleviate distractions on his own by 13 asking his classmates to stop making noise. 14 Special Education and the school psychologist testified that an 15 FBA was unnecessary. 16 The Director testified that M.C. had Both the Director of M.C. s speech pathologist testified that M.C. s tangential 17 speech was minimal, and when it occurred she was able to 18 successfully refocus M.C. to communicate meaningfully. 19 special-education teacher testified that she was able to 20 effectively educate M.C. with prompting and cuing, and identified 21 areas where prompting was decreased when it was no longer 22 necessary. M.C. s M.C. s general-education teacher testified that M.C. 6 1 had progressed in the curriculum and in social interactions 2 during the 2003-2004 school year. 3 District-wide special education teacher Kathy Rowland 4 testified that the school psychologist and M.C. s general- 5 education teacher nodded their heads in agreement when M.C. s 6 mother stated at a March 2004 Committee meeting that she thought 7 M.C. had not made progress at home. 8 warranted for a student whose behavior seriously interferes with 9 instruction, Rowland initially responded that there [are] many 10 factors, but when the question was asked again, stated I can t 11 say no, so I would have to say yes. 12 that she did not believe an FBA was required for M.C. 13 When asked whether an FBA is However, she also testified After the hearing, the IHO ruled in favor of M.C. s parents, 14 finding that Chappaqua erred in failing to conduct an FBA, and 15 that the personal aide served as a crutch or palliative measure 16 that hindered the development of M.C. s independence. 17 further found that Eagle Hill was an appropriate placement, and 18 ordered Chappaqua to reimburse the parents for the cost of Eagle 19 Hill in 2004-2005. 20 Chappaqua appealed to an SRO. The IHO The SRO reversed, finding 21 that Chappaqua adequately assessed M.C. s behavior and produced 22 an IEP that was reasonably calculated to enable M.C. to receive 23 educational benefits in the least restrictive environment. 7 Thus, 1 the decision not to conduct an FBA did not rise to the level of 2 denying the student a [free appropriate public education]. 3 SRO also noted ways in which the 2004-2005 IEP addressed M.C. s 4 need to develop independence. 5 The The parents pursued their claim in the district court, which 6 granted them summary judgment on the administrative record. 7 district court found that: (1) Chappaqua s failure to conduct an 8 FBA was a procedural violation of the IDEA that denied M.C. a 9 free appropriate public education; (2) the provision of a 10 personal aide and a private bathroom to M.C. made the IEP 11 substantively inappropriate because it promoted learned 12 helplessness and not independence; and (3) Eagle Hill was an 13 appropriate placement for M.C. 14 tuition reimbursement and attorneys fees and costs to M.C. s 15 parents. 16 The The district court awarded Chappaqua now appeals. 17 DISCUSSION 18 We review de novo the district court s grant of summary 19 judgment in an IDEA case. Cerra v. Pawling Cent. Sch. Dist., 427 20 F.3d 186, 191 (2d Cir. 2005). 21 involves more than looking into disputed issues of fact; rather, 22 it is a pragmatic procedural mechanism for reviewing 23 administrative decisions. Summary judgment in this context Lillbask ex rel. Mauclaire v. Conn. 8 1 Dep t of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005) (internal 2 quotation marks omitted). 3 [T]he role of the federal courts in reviewing state 4 educational decisions under the IDEA is circumscribed. 5 Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d 6 Cir. 2007) (internal quotation marks omitted). 7 district court must base its decision on the preponderance of 8 the evidence, 20 U.S.C. § 1415(i)(2)(C)(iii), it must give due 9 weight to [the administrative] proceedings, mindful that the While the 10 judiciary generally lack[s] the specialized knowledge and 11 experience necessary to resolve persistent and difficult 12 questions of educational policy, Gagliardo, 489 F.3d at 113 13 (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. 14 Rowley, 458 U.S. 176, 206, 208 (1982)). 15 may not substitute their own notions of sound educational policy 16 for those of the school authorities which they review. 17 458 U.S. at 206. 18 Thus, district courts Rowley, The deference paid to administrative proceedings is 19 particularly warranted where, as here, the district court s 20 decision was based solely on the administrative record. 21 v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 367 (2d Cir. 2006), 22 cert. denied, 128 S.Ct. 436 (2007). 23 conflicts with the earlier decision of the IHO, the IHO s 9 Frank G. If the SRO s decision 1 decision may be afforded diminished weight. Gagliardo, 489 2 F.3d at 113 n.2. 3 authorities, even where the reviewing authority disagrees with 4 the hearing officer. 5 Geneseo Cent. Sch. Dist., 736 F.2d 873, 877 (1984). We defer to the final decision of the state Karl ex rel. Karl v. Bd. of Educ. of 6 To receive federal funding under the IDEA, states are 7 required to provide disabled children with a free appropriate 8 public education. 9 believe that the state has failed to provide such an education 20 U.S.C. § 1412(a)(1)(A). Parents who 10 may, at their own financial risk, enroll the child in a private 11 school and seek retroactive reimbursement for the cost of the 12 private school from the state. 13 Gagliardo, 489 F.3d at 111. To determine whether parents are entitled to tuition 14 reimbursement, we engage in a three-step process. Cerra, 427 15 F.3d at 192. 16 with the procedures set forth in the IDEA. 17 consider whether the proposed IEP is substantively appropriate in 18 that it is reasonably calculated to enable the child to receive 19 educational benefits. 20 07). 21 do we reach the third step and ask whether the private schooling 22 obtained by the parents is appropriate to the child s needs. 23 In fashioning relief, equitable considerations [relating to the First, we examine whether the state has complied Id. Second, we Id. (quoting Rowley, 458 U.S. at 206- Only if the IEP is procedurally or substantively deficient 10 Id. 1 reasonableness of the action taken by the parents] are 2 relevant. 3 original) (quoting Sch. Comm. of Burlington v. Dep t of Educ. of 4 Massachusetts, 471 U.S. 359, 374 (1985)). 5 commencing the administrative review, the parents bear the burden 6 of persuasion as to the inappropriateness of Chappaqua s IEP and 7 the appropriateness of the private placement. 8 F.3d at 112. 9 I. 10 Frank G., 459 F.3d at 363-64 (alteration in As the party Gagliardo, 489 Procedural Compliance The initial procedural inquiry in an IDEA case is no mere 11 formality, as adequate compliance with the procedures 12 prescribed would in most cases assure much if not all of what 13 Congress wished in the way of substantive content in an IEP. 14 Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d 15 Cir. 1998) (quoting Rowley, 458 U.S. at 206). 16 does not follow that every procedural error in the development of 17 an IEP renders that IEP legally inadequate under the IDEA. 18 v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). 19 [H]owever, it Grim Here, the district court found that the failure to conduct 20 an FBA in accordance with a N.Y. State regulation was a 21 procedural violation of the IDEA that deprived M.C. of a free 22 appropriate public education. We disagree. 11 We conclude that the 1 failure to conduct an FBA here did not render the 2004-2005 IEP 2 legally inadequate. 3 M.C. s parents contend that Chappaqua was required by state 4 regulation to perform an FBA of M.C. but did not do so.1 5 Assuming such a violation may have occurred, the violation of 6 such a regulation does not compel the conclusion that the 2004- 7 2005 IEP was legally inadequate. 8 developing an IEP for a child whose behavior impedes the child s 9 learning, the school district must consider the use of positive The IDEA requires that, in 10 behavioral interventions and supports, and other strategies, to 11 address that behavior. 12 SRO found, Chappaqua satisfied this requirement, and its decision 13 not to also conduct an FBA did not rise to the level of denying 14 M.C. a free appropriate public education. 15 20 U.S.C. § 1414(d)(3)(B)(i). As the The 2004-2005 IEP provided for strategies to address M.C. s 16 behavior. 17 for a personal aide and prompting to maintain M.C. s focus during 18 class. 1 The IEP noted M.C. s attention problems and the need Chappaqua s experts testified that these strategies had The IDEA incorporates some but not all state law concerning special education. Bay Shore Union Free Sch. Dist. v. Kain ex rel. Kain, 485 F.3d 730, 734 (2d Cir. 2007). The state regulation relied upon by the district court requires a school district to conduct an FBA as part of its initial evaluation for a student whose behavior impedes his or her learning or that of others, as necessary to ascertain the physical, mental, behavioral and emotional factors which contribute to the suspected disabilities. 8 N.Y.C.R.R. § 200.4(b)(1)(v). 12 1 proven effective. The IEP provided for psychiatric and 2 psychological services to assess M.C. s tangential and fantasy 3 speech, which had declined in frequency over the 2003-2004 school 4 year and which M.C. s speech pathologist testified was minimal. 5 The Director of Special Education and the school psychologist 6 testified that an FBA of M.C. was unnecessary. 7 district-wide special-education teacher Rowland testified that an 8 FBA is warranted for a student whose behavior seriously 9 interferes with instruction, she also testified that there [are] 10 many factors involved in determining whether to perform an FBA, 11 and she did not believe an FBA of M.C. was warranted. Although 12 The preponderance of the evidence supports the SRO s 13 decision that the IEP adequately addressed M.C. s behavior, and 14 the sufficiency of Chappaqua s strategies for dealing with this 15 behavior is precisely the type of issue upon which the IDEA 16 requires deference to the expertise of the administrative 17 officers. 18 an FBA of M.C. did not render the IEP legally inadequate. 19 II. Grim, 346 F.3d at 382. Thus, the failure to perform Substantive Adequacy 20 [A] school district fulfills its substantive obligations 21 under the IDEA if it provides an IEP that is likely to produce 22 progress, not regression, and if the IEP affords the student with 23 an opportunity greater than mere trivial advancement. 13 Cerra, 1 427 F.3d at 195 (internal quotation marks omitted). 2 districts are not required to furnish every special service 3 necessary to maximize each handicapped child s potential. 4 Rowley, 458 U.S. at 199. 5 for children with disabilities to be educated, to the maximum 6 extent appropriate, together with their non-disabled peers. 7 Walczak, 142 F.3d at 122 (internal quotation marks omitted). 8 9 School Moreover, there is a strong preference The district court found that M.C. s 2004-2005 IEP was substantively deficient because it promoted learned 10 helplessness and not independence. 11 that the district court failed to accord appropriate deference to 12 the SRO s decision that the IEP adequately addressed M.C. s 13 independence. 14 Chappaqua argues, however, We agree with Chappaqua. Because administrative agencies have special expertise in 15 making judgments concerning student progress, deference is 16 particularly important when assessing an IEP s substantive 17 adequacy. 18 ways in which Chappaqua developed M.C. s independence, for 19 example, by decreasing the level of prompting where it was no 20 longer needed. 21 parents every four to six weeks to discuss M.C. s progress, 22 including the level of prompting required, and stressed 23 independence in the following of daily routines and the Cerra, 427 F.3d at 195. Here, the SRO identified The IEP also provided for team meetings with the 14 1 2 application of reading and math skills. M.C. also made progress toward independence in co-taught 3 classes during the 2003-2004 year. The June 2004 progress report 4 indicated that he had mastered the goal of independently 5 following classroom routines. 6 testified that M.C. had learned to recognize and alleviate 7 distractions on his own by asking his classmates to stop making 8 noise. 9 the bathroom. The Director of Special Education And M.C. no longer needed prompting and an escort to use Although there was testimony that the school 10 psychologist and M.C. s general-education teacher nodded their 11 heads in agreement when M.C. s mother expressed concern in March 12 2004 that he was not making progress, it is by no means clear 13 that they agreed with her concern, given that they both testified 14 to M.C. s progress over the 2003-2004 school year. 15 We therefore defer to the SRO s finding that the IEP 16 adequately addressed the need for M.C. to develop independence, 17 and thus was not substantively deficient under the IDEA. 18 Karl, 736 F.2d at 877. 19 See Because we find that M.C. s 2004-2005 IEP was neither 20 procedurally flawed nor substantively deficient, we need not 21 reach the issues whether the private placement at Eagle Hill was 22 appropriate, see Cerra, 427 F.3d at 192, or whether equitable 23 considerations affect relief, see Frank G., 459 F.3d at 363-64. 15 1 CONCLUSION 2 For the foregoing reasons, we REVERSE the judgment and 3 REMAND to the district court with instructions to enter judgment 4 in Chappaqua s favor. 16

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