22-2962-cv Neske v. NYC 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.

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 26th day of December, two thousand twenty-three.

Present: DENNIS JACOBS, ROBERT D. SACK, WILLIAM J. NARDINI, Circuit Judges. _____________________________________ DOROTHY NESKE, Individually and as Parent and Natural Guardian of A.N., CHRISTOPHER NESKE, Individually and as Parent and Natural Guardian of A.N., Plaintiffs-Appellants, v. 22-2962-cv NEW YORK CITY DEPARTMENT OF EDUCATION, CHANCELLOR OF DOE MEISHA PORTER, Defendants-Appellees. _____________________________________

For Plaintiffs-Appellants: RORY J. BELLANTONI (Ashleigh C. Rousseau, on the brief), Brain Injury Rights Group, New York, NY

For Defendants-Appellees: REBECCA L. VISGAITIS (Richard Dearing, Claude S. Platton, on the brief), of Counsel, for Sylvia O. Hinds- Radix, Corporation Counsel of the City of New York, New York, NY Appeal from a judgment of the United States District Court for the Southern District of

New York (Valerie E. Caproni, District Judge).

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

DECREED that the judgment of the district court is AFFIRMED.

Plaintiffs-Appellants Dorothy and Christopher Neske (the “Neskes”) are the parents of

A.N., a young student with learning disabilities due to a traumatic brain injury. The Neskes

appeal from a judgment of the United States District Court for the Southern District of New York

(Valerie E. Caproni, District Judge), entered on August 12, 2022, denying reimbursement of

educational and transportation costs incurred on behalf of A.N. during the 2018-2019 school year.

Pursuant to the Individuals with Disabilities Education Act (“IDEA”),

et seq.,

children with disabilities are entitled to a free and appropriate public education (“FAPE”),

including special services provided at public expense at a suitable school, in accordance with each

student’s Individualized Education Program (“IEP”). Parents dissatisfied with the recommended

IEP may unilaterally enroll their child in a private school and, at their own risk, seek retroactive

tuition reimbursement. The Neskes sought public funding for A.N.’s tuition at the International

Institute for the Brain (“iBrain”), a private school, for the 2018-2019 school year. A.N. was

previously enrolled at iHope, a different private school serving children with traumatic brain

injuries. The Neskes unilaterally decided to transfer A.N. to iBrain because they disagreed with

the New York Department of Education’s (“DOE”) recommended IEP for A.N.’s 2018-2019

school year, which proposed placing A.N. in a public school. The Neskes requested

reimbursement from the DOE for A.N.’s tuition at iBrain and filed a due process complaint, which

triggered a two-tiered administrative process. In the administrative proceedings, both the

2 Impartial Hearing Officer (“IHO”) and State Review Officer (“SRO”) found that A.N. was denied

a FAPE for the 2018-2019 school year and that A.N.’s placement at iBrain was an appropriate

placement, but that equitable considerations did not support the Neskes’ claim for reimbursement

of tuition. The district court agreed and held that equitable considerations did not support

reimbursement because of the Neskes’ overall conduct during the process of developing A.N.’s

IEP for the 2018-2019 school year. The Neskes now appeal that decision. We assume the

parties’ familiarity with the case.

When determining whether parents are entitled to tuition reimbursement under the IDEA,

the Supreme Court has applied what has become known as the Burlington/Carter test. See

Florence Cnty. Sch. Dist. Four v. Carter By & Through Carter,

, 12–13 (1993); Sch.

Comm. of Town of Burlington, Mass. v. Dep’t of Educ. of Mass.,

(1985). Under

that test, courts must determine “(1) whether the school district’s proposed plan will provide the

child with a [FAPE]; (2) whether the parents’ private placement is appropriate to the child’s needs;

and (3) a consideration of the equities.” C.F. ex rel. R.F. v. N.Y. City Dep’t of Educ.,

(2d Cir. 2014). 1 The DOE conceded (a) that they did not propose a plan that would have

provided A.N. with a FAPE in 2018-2019; and (b) that iBrain was an appropriate placement.

Therefore, we consider only whether the district court properly determined that the equities

warrant denying the Neskes’ request for reimbursement. We review such a denial of equitable

relief for abuse of discretion. Doe v. E. Lyme Bd. of Educ.,

(2d Cir. 2020).

“A district court abuses its discretion when its decision (1) rests on an error of law or a clearly

1 Unless otherwise indicated, case quotations omit all internal quotation marks, alteration marks, footnotes, and citations. 3 erroneous factual finding, or (2) cannot be found within the range of permissible decisions.” T.M.

ex rel. A.M. v. Cornwall Cent. Sch. Dist.,

(2d Cir. 2014).

Additionally, we must give due weight to the administrative findings because federal courts

generally “lack the specialized knowledge and experience necessary to resolve persistent and

difficult questions of educational policy.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist.,

Westchester Cnty. v. Rowley,

(1982). Consequently, district courts give

“deference to state administrative agencies when reviewing their IDEA decisions,” C.L. v.

Scarsdale Union Free Sch. Dist.,

(2d Cir. 2014), and this “deference is

particularly appropriate when the state officer’s review has been thorough and careful.” M.O. v.

New York City Dep’t of Educ.,

(2d Cir. 2015).

We conclude that the district court did not abuse its discretion in denying the Neskes’

request for tuition reimbursement. “IDEA provides district courts with broad discretion to grant

such relief as the court determines is appropriate in order to carry out its statutory mandate.” T.M.,

. Here, the district court agreed with the IHO’s and SRO’s conclusion that the

Neskes had been uncooperative in the process of coordinating A.N.’s placement. The record

provides sufficient support for the district court’s determination, based on the agency’s findings,

that the Neskes not only did not cooperate with the DOE but also were likely part of a broader

campaign to disrupt the IEP creation process to support the migration of students from iHope to

iBrain, which was orchestrated by the founder of iBrain and his related law firm. Specifically,

the district court highlighted that the record showed that dozens of iHope parents, including the

Neskes, insisted on requesting that a physician be present at the in-person IEP meetings but then

failed to attend themselves. The IHO and SRO found that DOE physicians could not physically

4 attend all IEP meetings because they received such a large volume of requests from parents.

However, when the physicians did attend the in-person IEP meetings at the parents’ behest, the

parents were often absent, or the meetings were cancelled on short notice. The district court

determined that these group cancellations were evidently a delaying tactic “designed to stymie the

DOE’s effort to create IEPs for the students.” J.A. 134 (internal quotation marks omitted). The

Neskes’ conduct tracked that obstructive pattern, strongly suggesting that their requests were

guided to a relevant degree by the founder of iBrain as part of the campaign to shift students from

iHope to iBrain and force the DOE to reimburse tuition costs at the new school without having to

go through the normal collaborative process.

Further, the IHO and SRO determined that the Neskes were uncooperative, in part, because

they found Dorothy Neske’s testimony to lack credibility. The district court agreed and noted

that her testimony contained a number of contradictions. For example, Dorothy Neske initially

testified that she had not conferred with a lawyer and had not discussed her ability to pay tuition

with the iBrain administration; then she testified, however, that she had indeed discussed the

contract with the law firm that provided it to her. But when asked to identify that law firm, she

backtracked, in what could fairly be read as an effort to conceal the role played by the iBrain-

related law firm in slowing down the IEP process: “I’m not referring to any law firm.” J.A. 133.

The district court properly relied on the IHO and SRO’s factual findings regarding the credibility

and, ultimately, cooperativeness of the parents.

The IEP creation process is meant to be collaborative, but the record demonstrates that the

Neskes were not present for the final IEP team meeting, even though they were afforded the

opportunity to participate, and, at the parents’ request, the DOE attempted to arrange a mutually

5 convenient time and place for the meeting to further accommodate the Neskes’ schedule. When

conducting an analysis of the equities, the district court properly weighed the Neskes’ absence

from the IEP meeting, likely involvement in the organized campaign to move students from iHope

to iBrain, and the concomitant inference that their absence and attempts to delay the creation of

A.N.’s IEP were taken in bad faith. Given these considerations, we cannot say that the district

court exceeded its broad discretion when it determined that the Neskes were not entitled to tuition

reimbursement. We have considered the remainder of the Neskes’ arguments and find them to be

unpersuasive.

* * *

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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