F.L., Individually and on Behalf of R.C.L. v. the Bd. of Educ. of the ( 2018 )

17-2881
F.L., individually and on behalf of R.C.L. v. The Bd. of Educ. of the Great Neck Union Free Sch. Dist.
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.
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
24th day of August, two thousand eighteen.
Present: JON O. NEWMAN,
ROSEMARY S. POOLER,
Circuit Judges.
DENISE COTE, 1
District Judge.
_____________________________________________________
F.L., INDIVIDUALLY AND ON BEHALF OF R.C.L.,
Plaintiff-Appellant,
v. 17-2881
THE BOARD OF EDUCATION OF THE GREAT NECK
UNION FREE SCHOOL DISTRICT,
Defendant-Appellee. 2
_____________________________________________________
Appearing for Appellant: Gary S. Mayerson, Mayerson & Associates, New York, N.Y.
Appearing for Appellee: Laura A. Ferrugiari, Frazer & Feldman, LLP, Garden City, N.Y.
1
Judge Denise Cote, United States District Court for the Southern District of New York, sitting
by designation.
2
The Clerk of the Court is directed to amend the caption as above.
Appeal from the United States District Court for the Eastern District of New York (Feuerstein,
J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
Appellant F.L., individually and on behalf of R.C.L. (the “father”), appeals from the
August 15, 2017 opinion and the August 21, 2017 judgment of the United States District Court
for the Eastern District of New York (Feuerstein, J.), granting summary judgment for the Board
of Education of the Great Neck Union Free School District (the “District”) and denying summary
judgment for the father. The father argues here, as he did below, that the Individualized
Education Plan (“IEP”) developed by the District over the course of three consecutive academic
years denied R.C.L. a free and appropriate public education (“FAPE”) under the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. Specifically, the father argues that
R.C.L. was denied a FAPE when the District denied Extended School Year (“ESY”) services to
R.C.L. over the summer and failed to provide him with the specific private reading services—
Lindamood Bell (“LMB”)—requested by the father. The Impartial Hearing Officer (“IHO”)
agreed with the father and ordered compensatory services and reimbursement to the father, but
the State Review Officer (“SRO”) disagreed and reversed the decision of the IHO, with an
exception not relevant here. The father appealed to the district court, which affirmed the SRO
and granted summary judgment for the school district. We assume the parties’ familiarity with
the remaining underlying facts, procedural history, and specification of issues for review.
Our traditional de novo review of summary judgment is modified in the context of
administrative agency decisions under IDEA. We have described our review as a “circumscribed
de novo review . . . because the responsibility for determining whether a challenged IEP will
provide a child with a FAPE rests in the first instance with administrative hearing and review
officers.” A.M. v. N.Y.C. Dep’t of Educ., 845 F.3d 523, 534 (2d Cir. 2017) (internal quotation
marks omitted). When the IHO and SRO disagree, a reviewing court should “defer to the final
decision of the state authorities, that is, the SRO’s decision. In the ordinary case, it is not for the
federal court to choose between the views of conflicting experts on such questions.” Hardison v.
Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014) (internal citation
and punctuation omitted). We “must defer to the SRO’s decision on matters requiring
educational expertise” unless we determine that the SRO’s decision was “inadequately reasoned,
in which case a better-reasoned IHO opinion may be considered instead.” R.E. v. N.Y.C. Dep’t of
Educ., 694 F.3d 167, 189 (2d Cir. 2012).
In this appeal, the father seeks both reimbursement for private reading tutoring that he
paid for R.C.L. to obtain in 2014, as well as a prospective award of compensatory education in
reading and math. Reimbursement claims are assessed using the three-step Burlington/Carter
test: parents are “entitled to reimbursement if (1) the school district’s proposed placement
violated the IDEA, (2) the parents’ alternative private placement is appropriate to meet the
child’s needs, and (3) equitable considerations favor reimbursement.” E.M. v. N.Y.C. Dep’t of
Educ., 758 F.3d 442, 451 (2d Cir. 2014). Courts assessing claims for compensatory education
review whether violations of the IDEA denied the child a FAPE, effectively the same analysis as
the first prong of Burlington/Carter. See Mr. P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 748,
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756-57 (2d Cir. 2018). Our analysis begins, therefore, by determining whether the school district
complied with the IDEA and provided R.C.L. a FAPE for the 2012-2013, 2013-2014, and 2014-
2015 school years.
In determining whether an IEP complies with the IDEA, courts make a two-part inquiry
that is, first, procedural, and second, substantive. At the first step, courts examine
whether there were procedural violations of the IDEA, namely, whether the state has
complied with the procedures set forth in the IDEA. Courts then examine whether the
IEP was substantively adequate, namely, whether it was reasonably calculated to enable
the child to receive educational benefits.
R.E., 694 F.3d at 189-90 (internal citations and punctuation omitted).
We first determine that there were no procedural violations that would have denied a
FAPE to R.C.L. The SRO observed that the Committee on Special Education (“CSE”) convened
“no fewer than eight times” between the 2012-13 and 2014-15 school years and that “[n]o fewer
than 10 persons attended each meeting.” App’x at 74. The SRO further observed that on the basis
of “a thorough review of both the audio recordings and over 500 pages of transcripts of those
recorded CSE meetings, as well as the minutes of the CSE meetings” it was clear that “while the
CSEs did not accede to every request made by the parent, the parents and the accompanying
attorney(s) were provided with ample opportunity to discuss the student, provide input into the
student’s present levels of performance and annual goals, and contribute to the development of
his IEPs.” App’x at 110. The IHO’s contrary determination that there were procedural violations
rested primarily on the IHO’s determination that “the CSE team consistently disregarded the
father’s concerns” despite the fact that “parent’s concerns were more than valid.” App’x at 63.
This observation does not provide a basis for a procedural violation. As one district court has
explained it, “[a] professional disagreement is not an IDEA violation.” P.K. ex rel. P.K. v.
Bedford Cent. Sch. Dist., 569 F.Supp.2d 371, 383 (S.D.N.Y. 2008). There is no basis to find that
the District engaged in the kind of “persistent refusal” to discuss the father’s concerns such that
the refusal could constitute “a procedural denial of a FAPE.” T.K. v. N.Y.C. Dep’t of Educ., 810
F.3d 869, 877 (2d Cir. 2016). Instead, the record evidence is that the District listened to father’s
concerns, but disagreed with his recommendations. As noted, these disagreements do not
constitute a procedural denial of a student’s FAPE.
We next turn to the substantive adequacy of R.C.L.’s IEPs and defer to the SRO’s well-
reasoned opinion that R.C.L. was provided a FAPE for each of the relevant school years. After a
searching review of each CSE meeting and IEP, the SRO determined that each IEP presented a
description of R.C.L.’s strengths, challenges, and goals that was consistent with the information
before the CSE at each of the meetings shaping the various IEPs.The SRO also acknowledged
modifications made to the IEPs in response to changes in R.C.L.’s evaluations or requests from
the parents. Accordingly, the SRO determined that R.C.L.’s IEPs were “reasonably calculated to
provide some meaningful benefit to the student.” App’x at 118.
The father argues there is objective evidence that R.C.L. did not receive a FAPE because
goals that were repeated between IEPs and R.C.L.’s poor performance on standardized tests (and
evidence of regression in the standardized testing conducted by his private evaluator) indicate
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that he was not in fact progressing, but was instead either stagnating or regressing. The SRO
examined these issues and determined that the weight of the evidence demonstrated that R.C.L.
was progressing, even if not at a pace that his father would have preferred. We agree that the
preponderance of the evidence supports the view that R.C.L. made steady progress each year and
that his IEPs were individually tailored to his unique mix of strengths and deficits.
We also observe that the Supreme Court’s recent clarification of the FAPE standard
buttresses our view that the preeminent requirement of IDEA is that the District individually
tailor a program that is sufficiently challenging for the unique needs of each child. IDEA
“requires an educational program reasonably calculated to enable a child to make progress
appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty.
Sch. Dist., 137 S.Ct. 988, 1001 (2017). That educational program need not include “grade-level
advancement” if that kind of progress is not “a reasonable prospect” for the particular child. Id.
at 1000. “But his educational program must be appropriately ambitious in light of his
circumstances, just as advancement from grade to grade is appropriately ambitious for most
children in the regular classroom. The goals may differ, but every child should have the chance
to meet challenging objectives.” 3 Id.Because we defer to the SRO’s decision on prong one of the Burlington/Carter test, we
do not need to address the remaining two prongs.
We have considered the remainder of the father’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
3
This Court recently observed that “[p]rior decisions of this Court are consistent with the
Supreme Court’s decision in Endrew F.” Mr. P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 757
(2d Cir. 2018).
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