17-0440-cv J.P., et al. v. City of N.Y. Dep’t 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 COURT’S 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 “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 19th day of December, two thousand seventeen. 4 5 PRESENT: GERARD E. LYNCH, 6 RAYMOND J. LOHIER, JR., 7 Circuit Judges, 8 CHRISTINA REISS, 9 Chief District Judge.* 10 ------------------------------------------------------------------ 11 12 J.P., ON BEHALF OF THEIR SON, J.P, A 13 MINOR WITH A DISABILITY, 14 INDIVIDUALLY, M.P., ON BEHALF OF 15 THEIR SON, J.P., A MINOR WITH A 16 DISABILITY, INDIVIDUALLY, 17 18 Plaintiffs-Appellants, 19 20 v. No. 17-0440-cv 21 22 CITY OF NEW YORK DEPARTMENT OF

* Chief Judge Christina Reiss, of the United States District Court for the District of Vermont, sitting by designation. 1 EDUCATION, 2 3 Defendant-Appellee. 4 ------------------------------------------------------------------

5 FOR APPELLANTS: THERESA SCOTTO-LAVINO (Jennifer Frankola, on 6 the brief), Lewis Johs Avallone Aviles, LLP, New 7 York, NY. 8 9 FOR APPELLEE: DEVIN SLACK (Dona Morris, on the brief), for 10 Zachary W. Carter, Corporation Counsel of the 11 City of New York, New York, NY. 12 13 Appeal from a judgment of the United States District Court for the

14 Southern District of New York (Alvin K. Hellerstein, Judge).

15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

16 AND DECREED that the judgment of the District Court is AFFIRMED.

17 Appellants J.P. and M.P., the parents of J.P., appeal from a grant of

18 summary judgment in favor of the City of New York Department of Education

19 (“DOE”) on their claim for tuition reimbursement under the Individuals with

20 Disabilities Education Act (“IDEA”),

et seq., in connection with

21 J.P.’s individualized education program (“IEP”) for the 2013–2014 school year.

22 In granting summary judgment, the District Court upheld a decision of a State

23 Review Officer (“SRO”), which in turn affirmed the decision of an Impartial

24 Hearing Officer (“IHO”). We assume the parties= familiarity with the facts and

2 1 record of the prior proceedings, to which we refer only as necessary to explain

2 our decision to affirm.

3 Mindful that courts lack the “specialized knowledge and educational

4 expertise” of state administrators, we conduct a “circumscribed de novo review

5 of a district court’s grant of summary judgment in the IDEA context[,]” seeking

6 only to “independently verify that the administrative record supports the district

7 court’s determination that a student’s IEP was adequate.” M.W. ex rel. S.W. v.

8 N.Y.C. Dep’t of Educ.,

(2d Cir. 2013).

9 1. Substantive Adequacy of the IEP

10 J.P.’s parents argue that the District Court erred by deferring to the IHO’s

11 and SRO’s determination that the 2013–2014 IEP was substantively adequate. A

12 substantively adequate IEP is one “reasonably calculated to enable a child to

13 make progress appropriate in light of the child’s circumstances.” Endrew F. ex

14 rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1,

, 999 (2017). The

15 question is “whether the IEP is reasonable, not whether the court regards it as

16 ideal.” Id.; see also M.H. v. N.Y.C. Dep’t of Educ.,

(2d Cir.

17 2012). On this question, “substantial deference” is owed to the judgments of

18 state administrators. Cerra v. Pawling Cent. Sch. Dist.,

, 191 (2d Cir. 3 1 2005). In determining that the IEP in this case was substantively adequate, the

2 SRO considered the record as a whole and explicitly referred to materials that

3 J.P.’s parents now suggest were ignored. And contrary to the parents’

4 assertions, the IHO also considered the disparity between J.P.’s preschool IEP

5 and the 2013–2014 IEP. Like the District Court, we conclude that the IHO’s and

6 SRO’s decisions merit deference because they are well reasoned and supported

7 by the record. See R.E. v. N.Y.C. Dep’t of Educ.,

(2d Cir. 2012);

8 Walczak v. Fla. Union Free Sch. Dist.,

(2d Cir. 1998).

9 We also reject the parents’ contention that the District Court should have

10 considered IEPs prepared for future school years as evidence that the 2013–2014

11 IEP was substantively inadequate. “The ‘reasonably calculated’ qualification

12 reflects a recognition that crafting an appropriate program of education requires

13 a prospective judgment by school officials.” Endrew F., 137 S. Ct. at 999

14 (emphasis added). The District Court did not err in concluding that subsequent

15 IEPs had limited probative value in assessing whether, at the time the 2013–2014

16 IEP was prepared, school officials had a reasonable basis to conclude that the IEP

17 was substantively adequate.

18 4 1 2. Procedural Adequacy of the IEP

2 J.P.’s parents argue that the 2013–2014 IEP was procedurally deficient in

3 two ways that amounted to a denial of a free appropriate public education

4 (“FAPE”). See

(f)(3)(E)(ii). First, the parents contend that the

5 DOE failed to conduct an adequate functional behavioral assessment (“FBA”) or

6 develop an adequate behavioral intervention plan (“BIP”). Although the failure

7 to conduct an FBA or BIP in conformity with New York State regulations is a

8 “serious procedural violation,” it “does not rise to the level of a denial of a FAPE

9 if the IEP adequately identifies the problem behavior and prescribes ways to

10 manage it.” R.E.,

; see also M.W.,

. We agree with

11 the IHO and SRO that the 2013–2014 IEP adequately identified J.P.’s problem

12 behaviors, including his inattention and impulsivity, and addressed those

13 behaviors with the provision of a 1:1 paraprofessional and related services.

14 Therefore, even assuming that the DOE failed to fully comply with State

15 regulations, that failure would not automatically deny J.P. a FAPE.

16 Second, the parents argue that J.P.’s public school placement under the IEP

17 was predetermined, impeding their opportunity to meaningfully participate in

18 the decisionmaking process. Although parents are denied meaningful 5 1 participation when the school district lacks an “open mind” as to the contents of

2 a child’s IEP, T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist.,

,

3 253 (2d Cir. 2009), J.P.’s parents have failed to make this showing. The record

4 demonstrates that the CSE heard their objections, considered materials they

5 submitted, and convened a second meeting to address their objections and

6 explain its reasoning, and that J.P.’s parents fully participated in both CSE

7 meetings.

8 Because J.P.’s IEP was substantively and procedurally adequate, we need

9 not address whether his private placement was appropriate or whether the

10 equitable factors favor reimbursement. Hardison v. Bd. of Educ.,

,

11 388 (2d Cir. 2014).

12 3. Conclusion

13 We have considered the parents’ remaining arguments and conclude that

14 they are without merit. For the foregoing reasons, the judgment of the District

15 Court is AFFIRMED.

16 FOR THE COURT: 17 Catherine O=Hagan Wolfe, Clerk of Court

6