16‐1952‐cv R.B., et al. v. N.Y.C. Depʹt of Educ.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of April, two thousand seventeen.

PRESENT: GUIDO CALABRESI, DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

R.B., individually, M.L.B., individually, R.B., on behalf of son, D.B., A MINOR, M.L.B., on behalf of son, D.B., A MINOR, Plaintiffs‐Appellants,

v. 16‐1952‐cv

NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant‐Appellee.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x FOR PLAINTIFFS‐APPELLANTS: GARY S. MAYERSON (Jean Marie Brescia, on the brief), Mayerson & Associates, New York, New York.

FOR DEFENDANT‐APPELLEE: JULIE STEINER (Pamela Seider Solgow, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Cote, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiffs‐appellants R.B. and M.L.B., the parents of D.B., a teenager

diagnosed with autism (the ʺParentsʺ), appeal a May 19, 2016 judgment of the district

court entered pursuant to a May 19, 2016 opinion and order that granted summary

judgment in favor of defendant‐appellee the New York City Department of Education

(the ʺDepartmentʺ), denying reimbursement for D.B.ʹs private school tuition under the

Individuals with Disabilities Education Act (ʺIDEAʺ),

et seq. The

question presented is whether the Department provided D.B. with a ʺfree appropriate

public educationʺ (ʺFAPEʺ) through an Individualized Education Program (ʺIEPʺ), as

mandated by the IDEA.

§ 1414(d)

It is undisputed that the IDEA required the Department to provide D.B.

with a FAPE and that pursuant to this obligation it prepared IEPs for the 2013‐14 and

2014‐15 school years in consultation with the Parents. Unsatisfied with those IEPs, the

2 Parents enrolled D.B. in a private school that specializes in educating children with

autism and commenced a state administrative proceeding before an Impartial Hearing

Officer (ʺIHOʺ), seeking tuition reimbursement pursuant to

(a)(10)(C).1

The IHO held a hearing over six days in October and November 2014. On

January 23, 2015, the IHO found that IEPs for both school years were insufficient

because (1) the recommended vocational and transition services were deficient; (2) the

Department did not give the Parents the requisite written notice for the 2013‐2014 year,

(3) the long‐term and short‐term goals specified in the IEPs were insufficiently

measurable, (4) the IEPs were impermissibly predetermined, (5) the recommended

classroom student to educator ratio would not allow D.B. to progress in social

interactions, (6) the teaching methodology in such classrooms would be ineffective for

D.B., and (7) the recommended school sites were ill‐equipped to execute the IEPsʹ

requirements. The IHO found that the Parents cooperated with the Department

throughout the IEP development process and that the chosen private school was

suitable. Therefore, the IHO concluded that the Department was obligated to reimburse

D.B.ʹs tuition for the 2013‐2014 and 2014‐2015 school years.

1 The Parents previously (but unsuccessfully) have sought reimbursement every year since 2009. See, e.g., R.B. v. N.Y.C. Depʹt of Educ.,

(S.D.N.Y. 2014), aff’d sub nom. R.B. ex rel. D.B. v. N.Y.C. Depʹt of Educ., 603 F. Appʹx 36, 38‐40 (2d Cir. 2015) (affirming decision of SRO for 2011‐2012 school year).

3 The Department appealed the IHOʹs ruling to a State Review Officer

(ʺSROʺ). On May 4, 2015, the SRO determined that the IEPs were sufficient and offered

D.B. a FAPE. The SRO concluded, inter alia, that (1) the IEPs offered appropriate

postsecondary goals and transition services, (2) neither IEP was predetermined, (3)

omitting written notice to the parents and failing to assess D.B.ʹs vocational skills were

mere procedural violations that did not deny D.B. a FAPE, (4) the IEPsʹ short and long

term goals were adequate, (5) the proposed classroom student to educator ratio was

reasonable, and (6) the Department did not need to specify a particular teaching

methodology ahead of time. Therefore, the SRO concluded that the Department had

offered D.B. a FAPE for the 2013‐2014 and 2014‐2015 school years and thus no tuition

reimbursement was required.

On August 11, 2015, the Parents filed a complaint in the district court,

alleging that D.B. was denied a FAPE. The parties filed motions for summary judgment

in December 2015 and January 2016. On May 19, 2016, the district court granted

summary judgment in favor of the Department. The Parents timely appealed.

We review the district courtʹs grant of summary judgment de novo.

Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist.,

(2d Cir. 2014). In

reviewing the state administrative proceeding under the IDEA, we ʺengage in an

independent, but circumscribed, review, ʹmore critical than clear‐error review but well

short of complete de novo review.ʹʺ T.K. v. N.Y C. Depʹt of Educ.,

(2d

4 Cir. 2016) (quoting C.F. ex re. R.F. v. N.Y.C. Depʹt of Educ.,

(2d Cir. 2014)).

Factual issues are decided based on the preponderance of the evidence, but state

administrative proceedings must be given ʺdue weight.ʺ Bd. of Educ. of Hendrick Hudson

Cent. Sch. Dist., Westchester Cty. v. Rowley,

(1982); see also

(i)(2)(C)(iii). When, as here, ʺan IHO and SRO reach conflicting conclusions, ʹ[w]e

defer to the final decision of the state authorities,ʹ that is, the SROʹs decision.ʺ R.E. v.

N.Y.C. Depʹt of Educ.,

(2d Cir. 2012) (alteration in original) (quoting

A.C. ex rel. M.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist.,

(2d Cir.

2009)). Indeed, ʺa court must defer to the SROʹs decision on matters requiring

educational expertise unless it concludes that the decision was inadequately reasoned,

in which case a better‐reasoned IHO opinion may be considered instead.ʺ Id.; accord

M.H. v. N.Y. City Depʹt of Educ., 685 F.3d at 246 (noting that it is appropriate to consider

IHOʹs decision ʺwhere the SRO rejects a more thorough and carefully considered

decision of an IHOʺ).

The IDEA was enacted ʺto ensure that all children with disabilities have

available to them a free appropriate public education that emphasizes special education

and related services designed to meet their unique needs.ʺ

(d)(1)(A).

The ʺstatute guarantees . . . an appropriate education, not one that provides everything

that might be thought desirable by loving parents.ʺ Walczak v. Fla. Union Free Sch. Dist.,

(2d Cir. 1998) (citation and internal quotation marks omitted). A

5 school district meets its obligations to provide a FAPE by creating an IEP that is

developed in compliance with the IDEAʹs procedural and substantive requirements.

See Rowley, 458 U.S. at 206‐07. Accordingly, our review of the adequacy of an IEP

proceeds in two steps. ʺFirst, we examine whether the state has complied with the

procedures set forth in the IDEAʺ and applicable regulations. T.P. ex rel. S.P. v.

Mamaroneck Union Free Sch. Dist.,

(2d Cir. 2009) (per curiam). Second,

we consider whether, substantively, the IEP is ʺreasonably calculated to enable a child

to make progress appropriate in light of the childʹs circumstances.ʺ Endrew F. ex rel.

Joseph F. v. Douglas Cty. Sch. Dist. RE‐1,

, 999 (2017). As to this latter

requirement, the IEP need not bring the child to grade‐level achievement, but it must

aspire to provide more than de minimis educational progress. Id. at 1000‐01.

As is relevant to this appeal, the IDEA provides that ʺbeginning not later

than the first IEP to be in effect when the child is 16,ʺ an IEP must include

ʺpostsecondary goals based upon age appropriate transition assessments related to

training, education, employment, and, where appropriate, independent living skillsʺ

and ʺthe transition services (including courses of study) needed to assist the child in

reaching those goals.ʺ

(d)(1)(A)(i)(VIII)(aa)‐(bb).2 It is undisputed that

D.B.ʹs 2013‐14 and 2014‐15 IEPs were subject to this requirement.

2 New York state regulations require that such postsecondary goals and transition services be provided for in the first IEP in effect when the child is fifteen. See N.Y. Comp. Codes R. & Regs., tit. 8, § 200.4(d)(2)(ix).

6 On appeal, the Parents principally argue that the Department was

required by state and federal regulations to assess D.B. in person and its failure to do so

undermined the development of IEPs that were reasonably calculated to provide the

postsecondary goals and transition services required by

(d)(1)(A)(i)(VIII)(aa)‐(bb).3 Accordingly, the Parents contend they are entitled to

tuition reimbursement under

(a)(10)(C). We are not persuaded.

Under the IDEA, parents are entitled to reimbursement only if the alleged

procedural violations (1) ʺimpeded the childʹs right to a free appropriate public

education,ʺ (2) ʺsignificantly impeded the parentsʹ opportunity to participate in the

decisionmaking process regarding the provision of a free appropriate public education

to the parentsʹ child,ʺ or (3) ʺcaused a deprivation of educational benefits.ʺ

(f)(3)(E)(ii)(I)‐(III); see also A.M. v. N.Y.C. Depʹt of Educ.,

(2d Cir.

2017). In other words, ʺparents must articulate how a procedural violation resulted in

the IEPʹs substantive inadequacy or affected the decision‐making process.ʺ

(quoting

3 For example, the Parents argue that New York state regulations require the Department to conduct a ʺstudent interview[] to determine vocational skills, aptitudes and interests.ʺ N.Y. Comp. Codes R. & Regs., tit. 8, § 200.4(b)(6)(viii). The Parents also contend that the Department violated

, which requires that a school district constitute an ʺIEP Team for each child with a disability,ʺ whose members must include, inter alia, the childʹs parents, an appropriate teacher, a school district representative, and ʺ[w]henever appropriate, the child with a disability.ʺ

§ 300.321(a)(1)‐(7). When the purpose of a given IEP Team meeting is to set ʺpostsecondary goals for the child and the transition services needed to assist the child in reaching those goals,ʺ the school district is required to invite the child to attend the meeting. Id. § 300.321(b)(1). If the child does not attend, the school district ʺmust take other steps to ensure the childʹs preferences and interests are considered.ʺ Id. § 300.321(b)(2).

7 M.W. ex rel. S.W. v. N.Y.C. Depʹt of Educ.,

(2d Cir. 2013)). Here, even

assuming arguendo that the failure to conduct an in person assessment of D.B. violated

applicable state or federal regulations, the lack of an in person assessment did not

impede D.B.ʹs right to a FAPE, significantly impede the Parentsʹ opportunity to

participate in the decisionmaking process, or deprive D.B. of educational benefits.

The Department explained in the state administrative proceeding that it

did not conduct an in person assessment of D.B. because the Parents submitted a

privately obtained substitute report and the ʺstandard vocational assessment required a

higher level of reading skills than the student possessed.ʺ App. 754 (internal quotation

marks omitted). Moreover, the Department conducted a vocational interview with the

Parents and consulted with D.B.ʹs private school teachers about his progress, goals, and

preferred learning environment. It also invited D.B. to attend meetings in which

postsecondary goals and transitions services were discussed, but the Parents declined to

bring him because they felt that he could not sit through the meetings. The Department

then incorporated what it learned from these consultations into the IEPs, which state

that D.B. ʺrequire[d] support in clothing care, meal preparation, household

management and consumer skills,ʺ App. 464, and that his parents want him to seek

employment after high school. The IEPs also identify ʺtransition activitiesʺ to enable

D.B. to meet these goals, including, for example, trips ʺinto the community to purchase

items independently and get the correct change,ʺ ʺlearn[ing] appropriate phone . . . and

8 workplace etiquette,ʺ and ʺlearn[ing] to make a budget and shop for his own food and

other needed items within that budget.ʺ App. 470. Accordingly, we agree with the

district court and the SRO that the IEPs were reasonably calculated to provide D.B. with

the postsecondary goals and transition services required by the IDEA. Even assuming

arguendo that the failure to assess D.B. in person was a procedural violation, we

conclude that the Parents have not shown an impediment to D.B.ʹs right to a FAPE, a

significant impediment to their opportunity to participate in the decisionmaking

process, or a deprivation of educational benefits. Therefore, we affirm the SROʹs ‐‐ and

the district courtʹs ‐‐ decision that the Parents are not entitled to reimbursement of D.B.ʹs

private school tuition.

We have reviewed the Parentsʹ remaining arguments and conclude they

are without merit. Accordingly, the judgment of the district court is AFFIRMED.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

9