22-2636 A.P. v. N.Y.C. 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 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 City of 3 New York, on the 26th day of February, two thousand twenty-four. 4 5 PRESENT: 6 RICHARD C. WESLEY, 7 MICHAEL H. PARK, 8 ALISON J. NATHAN, 9 Circuit Judges. 10 __________________________________________ 11 12 A.P., Individually and on behalf of A.P., a minor 13 child with a disability, M.P., Individually and on 14 behalf of A.P., a minor child with a disability, 15 16 Plaintiffs-Appellants, 17 18 v. 22-2636 19 20 New York City Department of Education, 21 22 Defendant-Appellee. 23 ___________________________________________ 24 25 FOR APPELLANTS: QIAN JULIE WANG (Marc Gottlieb, on the briefs), 26 Gottlieb & Wang LLP, New York, NY. 27 28 FOR APPELLEE: LAUREN O’BRIEN (Claude S. Platoon, Melanie T. 29 West, Kevin Osowski, on the brief), for Hon. Sylvia 30 O. Hinds-Radix, Corporation Counsel of the City of 31 New York, New York, NY. 32 1 Appeal from a judgment of the United States District Court for the Southern District of

2 New York (Schofield, J.).

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

4 DECREED that the judgment of the district court is VACATED and REMANDED for further

5 proceedings.

6 Appellant A.P. is a 13-year-old girl with autism who was approved by the New York City

7 Department of Education (DOE) to enroll in a non-public school for students with special

8 education needs. For the 2020-2021 school year, after the DOE failed to provide a free and

9 appropriate education to A.P. as required by the Individuals with Disabilities Education Act

10 (IDEA), A.P. enrolled in Keswell, a private school for children with special needs, and opted for

11 remote instruction for the year due to apprehensions about the COVID-19 pandemic. Appellants

12 A.P. and M.P., A.P.’s parents, initiated administrative proceedings to seek reimbursement for

13 A.P.’s education. At an impartial hearing, the impartial hearing officer (IHO) found that Keswell

14 was generally an appropriate private school placement, but awarded Appellants only partial tuition

15 reimbursement for the 2020-2021 school year due to the nature of A.P.’s remote instruction

16 program. Appellants appealed to the state review officer (SRO). The SRO disagreed with the

17 IHO’s finding that Appellants’ private school placement was appropriate and denied Appellants

18 any tuition award for the 2020-2021 school year. Appellants then brought this suit in the district

19 court, seeking review of the SRO’s decision. The district court determined that based on A.P.’s

20 progress and the totality of the circumstances, the IHO correctly found that A.P.’s placement

21 ”addressed her needs, albeit to a limited extent,” and that Appellants were entitled to partial

2 1 reimbursement. SPA-15 (cleaned up). Appellants timely appealed, seeking review of the district

2 court’s partial reimbursement award in lieu of a full reimbursement award. We assume the

3 parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

4 appeal.

5 “We review the district court’s grant . . . of summary judgment de novo.” Windward

6 Bora, LLC v. Wilmington Sav. Fund Soc’y, FSB,

(2d Cir. 2020). “The IDEA

7 provides district courts with broad discretion to grant such relief as the court determines is

8 appropriate in order to carry out its statutory mandate.” T.M. ex rel. A.M. v. Cornwall Cent. Sch.

9 Dist.,

(2d Cir. 2014) (internal quotation marks omitted). “We review for abuse

10 of discretion the fashioning of relief under

(i)(2)(C)(iii).” Doe v. E. Lyme Bd. of

11 Educ.,

(2d Cir. 2015).

12 We find that the district court exceeded its discretion in awarding partial tuition

13 reimbursement. First, the district court did not meaningfully analyze and weigh the equities in

14 determining the tuition award. The district court noted that “Defendant does not appear to dispute

15 that equitable considerations favor Plaintiffs for the 2020-2021 school year.” SPA-18. Then it

16 accepted “the IHO’s finding that the remote live sessions A.P. participated in for three hours per

17 day was appropriate, and she [was] therefore entitled to partial reimbursement of the tuition.”

18 But it identified no equitable factors that weighed against A.P. To the extent the district court

19 reduced the award in its equitable discretion, it erred by doing so without finding that any equities

20 weighed against A.P.

21 Second, the district court improperly deferred to the IHO’s finding of a partial award. The

22 Burlington-Carter test looks to “(1) whether the school district’s proposed plan will provide the

3 1 child with a free appropriate public education; (2) whether the parents’ private placement is

2 appropriate to the child’s needs; and (3) a consideration of the equities.” C.F. ex rel. R.F. v.

3 N.Y.C. Dep’t of Educ.,

(2d Cir. 2014). The first two prongs of the test generally

4 constitute a binary inquiry that determines whether or not relief is warranted, while the third

5 enables a court to determine the appropriate amount of reimbursement, if any. See Forest Grove

6 Sch. Dist. v. T.A.,

(2009) (“Parents are entitled to reimbursement only if a

7 federal court concludes both that the public placement violated IDEA and the private school

8 placement was proper under the Act. And even then courts retain discretion to reduce the amount

9 of a reimbursement award if the equities so warrant.” (cleaned up)). In its analysis of the second

10 prong of the test—the appropriateness prong—the IHO found that three hours of remote sessions

11 out of an eight-hour day were appropriate, thus entitling Appellants to 3/8th of the tuition

12 reimbursement. The IHO incorrectly applied the Burlington-Carter test by conducting

13 reimbursement calculations in its appropriateness analysis. It should have determined only

14 whether the placement was appropriate or not.

15 Additionally, once parents pass the first two prongs of the Burlington-Carter test, the

16 Supreme Court’s language in Forest Grove, stating that the court retains discretion to “reduce the

17 amount of a reimbursement award if the equities so warrant,” suggests a presumption of a full

18 reimbursement award.

; see also

(a)(10)(C)(ii) (suggesting that

19 reimbursements “for the cost of . . . enrollment” is the ordinary remedy when a student is denied a

20 FAPE and must be placed in private school, subject to certain limitations in (a)(10)(C)(iii)). From

21 an entitlement of full reimbursement, equitable factors are considered in deciding whether to

22 reduce or deny reimbursement. See Forest Grove,

(“When a court . . . concludes

4 1 that a school district failed to provide a FAPE and the private placement was suitable, it must

2 consider all relevant factors . . . in determining whether reimbursement for some or all of the cost

3 of the child’s private education is warranted.”). Here, after finding that Appellants were eligible

4 for relief, the IHO also found that the equities favored Appellants. But it nonetheless awarded

5 only partial reimbursement without explaining any equitable factors that justified this reduction.

6 Courts must give due weight to state administrative proceedings under the IDEA but owe

7 no deference on issues of law. See Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S.,

152, 165 (2d Cir. 2021). By inappropriately applying the Burlington-Carter test, the IHO erred

9 in determining the partial reimbursement award. Thus, the district court then erred by relying on

10 the IHO’s award finding.

11 For the foregoing reasons, the judgment of the district court granting in part Appellants’

12 motion for summary judgment is VACATED, and the case is REMANDED for further

13 proceedings.

14 15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk of Court

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