A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist. , 553 F.3d 165 ( 2009 )

07-3694-cv
A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist.
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 --------
4 August Term, 2008
5 (Argued: December 3, 2008 Decided: January 16, 2009)
6
7 Docket No. 07-3694-cv
8 -----------------------------------------------------------X
9 A.C. and M.C., on behalf of M.C.,
10
11 Plaintiffs-Appellees,
12
13 - v. -
14
15 BOARD OF EDUCATION OF THE CHAPPAQUA CENTRAL SCHOOL DISTRICT,
16
17 Defendant-Appellant.*
18 -----------------------------------------------------------X
19 Before: JACOBS, Chief Judge, McLAUGHLIN and B.D. PARKER,
20 Circuit Judges.
21
22 Appeal from a judgment of the United States District Court
23 for the Southern District of New York (Brieant, J.) granting
24 summary judgment to Plaintiffs-Appellees.
25 REVERSED and REMANDED.
26 GARY S. MAYERSON, Mayerson &
27 Associates, New York, NY, for
28 Plaintiffs-Appellees.
29
30 MARK C. RUSHFIELD, Shaw, Perelson,
31 May & Lambert, LLP, for Defendant-
32 Appellant.
33
*
The Clerk of the Court is directed to amend the official
caption as set forth above.
1 McLAUGHLIN, Circuit Judge:
2 The Board of Education of the Chappaqua Central School
3 District (“Chappaqua”) appeals from a grant of summary judgment
4 to Plaintiffs A.C. and M.C. by the United States District Court
5 for the Southern District of New York (Brieant, J.). A.C. and
6 M.C. sued under the Individuals with Disabilities Education Act
7 (the “IDEA”), 20 U.S.C. §§ 1400 et seq., seeking reimbursement
8 for their learning-disabled child’s private-school tuition.
9 Dismissing Chappaqua’s proposed plan for special-education
10 services for M.C.’s fifth-grade year, the parents declined to
11 send their son M.C. to a public middle school in 2004-2005. They
12 instead enrolled M.C. in the private Eagle Hill School and
13 requested an impartial due process hearing under the IDEA to
14 obtain tuition reimbursement from Chappaqua. See 20 U.S.C. §
15 1415(f). Although an Impartial Hearing Officer (“IHO”) granted
16 their claim, a State Review Officer (“SRO”) found that M.C.’s
17 parents were not entitled to reimbursement. The parents then
18 pursued their claim in the United States District Court for the
19 Southern District of New York. The district court agreed with
20 the parents and held that Chappaqua had violated both the
21 procedural and substantive requirements of the IDEA.
22 Accordingly, it granted summary judgment to the parents and
2
1 awarded them tuition reimbursement, as well as attorneys’ fees
2 and costs.
3 We reverse.
4 BACKGROUND
5 M.C. attended pre-school through fourth grade in Chappaqua
6 public schools. During this period, he was diagnosed with
7 multiple disabilities, including Pervasive Developmental Disorder
8 and Autism. As a disabled child, M.C. was entitled under the
9 IDEA to a “free appropriate public education” administered by
10 Chappaqua according to an “Individualized Education Program”
11 (“IEP”). See 20 U.S.C. §§ 1412(a)(1)(A) & 1414(d).
12 During the 2003-2004 school year, M.C. attended a “co-
13 taught” fourth-grade class at Roaring Brook Elementary School.
14 In this class, M.C. was taught alongside non-disabled students,
15 with support provided by a special-education teacher for part of
16 the day and by a program assistant for the rest of the day.
17 Because M.C. had difficulty focusing, Chappaqua also provided him
18 with a personal aide, who would sit near him and keep his
19 attention on his work through the use of prompts and cues.
20 Occasionally the aide would bring M.C. to the school psychologist
21 when he engaged in out-of-context “tangential” or “fantasy”
22 speech, which involved the repetition of lines from television
23 programs or incoherent storytelling. Chappaqua also provided
3
1 M.C. with additional math and reading instruction, occupational
2 and speech therapy, and summer programs.
3 Between March and July 2004, Chappaqua’s Committee on
4 Special Education (the “Committee”) met several times to discuss
5 M.C.’s progress and formulate an IEP for M.C.’s fifth-grade year
6 in 2004-2005. M.C.’s parents requested that Chappaqua consider
7 placing M.C. in the Eagle Hill School, a private school for
8 disabled children. The Committee declined to do so, and produced
9 an IEP providing for co-taught classes at a public middle school.
10 The IEP also provided for meetings with M.C.’s parents every four
11 to six weeks where M.C.’s progress, including the level of
12 prompting required, was to be discussed. Other programs included
13 additional academic instruction; occupational and speech therapy;
14 psychiatric and psychological services; and summer programs. The
15 IEP noted that M.C. required prompting to maintain focus, but
16 stressed the importance of developing M.C.’s independence in
17 applying reading and math skills and following classroom
18 routines. Though M.C. would only use a private bathroom at
19 school, he no longer required prompting and an escort as had
20 previously been necessary. The IEP noted M.C.’s tangential
21 speech, and that his “[b]ehavior seriously interferes with
22 instruction due to frequent tuning out and inattention. An
23 additional adult such as a program assistant is needed.”
4
1 Although not explicitly stated in the IEP, a personal aide would
2 again have been provided.
3 In August 2004, M.C.’s parents informed the Committee that
4 they did not accept the 2004-2005 IEP and would enroll M.C. at
5 Eagle Hill. They requested an administrative hearing to obtain
6 reimbursement from Chappaqua for the cost of Eagle Hill. They
7 contended that Chappaqua failed to offer a free appropriate
8 public education by, among other things, not providing for a
9 functional behavioral assessment (“FBA”) of M.C. An FBA is “the
10 process of determining why the student engages in behaviors that
11 impede learning and how the student’s behavior relates to the
12 environment.” 8 N.Y.C.R.R. § 200.1(r).
13 Between March and July of 2005, an IHO conducted an
14 administrative hearing. The evidence at the hearing included
15 witness testimony and reports concerning evaluations of M.C. A
16 neuropsychologist retained by the parents reported in January
17 2004 that M.C. would continue to require an aide if he were to
18 attend a public middle school. Reports by Chappaqua staff in
19 Spring 2004 stressed the need for prompting to maintain M.C.’s
20 focus. Both M.C.’s speech pathologist and occupational therapist
21 agreed that M.C. had made progress. A June 2004 progress report
22 indicated that M.C. had mastered 37 of 41 objectives set forth in
23 his 2003-2004 IEP, including the goal of independently following
5
1 classroom routines. An observation report indicated that M.C.
2 “required 1:1 support for all observed activities.”
3 Chappaqua’s Director of Special Education and the school
4 psychologist testified that the personal aide and prompting had
5 successfully addressed M.C.’s inattentive behavior.
6 Psychological and psychiatric services were recommended to assess
7 M.C.’s tangential and fantasy speech. The psychologist testified
8 that incidents of this speech requiring his involvement decreased
9 over the course of the 2003-2004 school year, and that M.C. had
10 “improved tremendously in terms of his ability just to be part of
11 the social environment.” The Director testified that M.C. had
12 learned to recognize and alleviate distractions on his own by
13 asking his classmates to stop making noise. Both the Director of
14 Special Education and the school psychologist testified that an
15 FBA was unnecessary.
16 M.C.’s speech pathologist testified that M.C.’s tangential
17 speech was “minimal,” and when it occurred she was able to
18 successfully refocus M.C. to communicate meaningfully. M.C.’s
19 special-education teacher testified that she was able to
20 effectively educate M.C. with prompting and cuing, and identified
21 areas where prompting was decreased when it was no longer
22 necessary. M.C.’s general-education teacher testified that M.C.
6
1 had progressed in the curriculum and in social interactions
2 during the 2003-2004 school year.
3 District-wide special education teacher Kathy Rowland
4 testified that the school psychologist and M.C.’s general-
5 education teacher nodded their heads in agreement when M.C.’s
6 mother stated at a March 2004 Committee meeting that she thought
7 M.C. had not made progress at home. When asked whether an FBA is
8 warranted for a student whose behavior seriously interferes with
9 instruction, Rowland initially responded that “there [are] many
10 factors,” but when the question was asked again, stated “I can’t
11 say no, so I would have to say yes.” However, she also testified
12 that she did not believe an FBA was required for M.C.
13 After the hearing, the IHO ruled in favor of M.C.’s parents,
14 finding that Chappaqua erred in failing to conduct an FBA, and
15 that the personal aide served as a “crutch or palliative measure”
16 that hindered the development of M.C.’s independence. The IHO
17 further found that Eagle Hill was an appropriate placement, and
18 ordered Chappaqua to reimburse the parents for the cost of Eagle
19 Hill in 2004-2005.
20 Chappaqua appealed to an SRO. The SRO reversed, finding
21 that Chappaqua adequately assessed M.C.’s behavior and produced
22 an IEP that was reasonably calculated to enable M.C. to receive
23 educational benefits in the least restrictive environment. Thus,
7
1 the “decision not to conduct an FBA did not rise to the level of
2 denying the student a [free appropriate public education].” The
3 SRO also noted ways in which the 2004-2005 IEP addressed M.C.’s
4 need to develop independence.
5 The parents pursued their claim in the district court, which
6 granted them summary judgment on the administrative record. The
7 district court found that: (1) Chappaqua’s failure to conduct an
8 FBA was a procedural violation of the IDEA that denied M.C. a
9 free appropriate public education; (2) the provision of a
10 personal aide and a private bathroom to M.C. made the IEP
11 substantively inappropriate because it promoted “learned
12 helplessness” and not independence; and (3) Eagle Hill was an
13 appropriate placement for M.C. The district court awarded
14 tuition reimbursement and attorneys’ fees and costs to M.C.’s
15 parents.
16 Chappaqua now appeals.
17 DISCUSSION
18 We review de novo the district court’s grant of summary
19 judgment in an IDEA case. Cerra v. Pawling Cent. Sch. Dist., 427
20 F.3d 186, 191 (2d Cir. 2005). Summary judgment in this context
21 involves more than looking into disputed issues of fact; rather,
22 it is a “pragmatic procedural mechanism” for reviewing
23 administrative decisions. Lillbask ex rel. Mauclaire v. Conn.
8
1 Dep’t of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005) (internal
2 quotation marks omitted).
3 “[T]he role of the federal courts in reviewing state
4 educational decisions under the IDEA is circumscribed.”
5 Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d
6 Cir. 2007) (internal quotation marks omitted). While the
7 district court must base its decision “on the preponderance of
8 the evidence,” 20 U.S.C. § 1415(i)(2)(C)(iii), it “must give ‘due
9 weight’ to [the administrative] proceedings, mindful that the
10 judiciary generally ‘lack[s] the specialized knowledge and
11 experience necessary to resolve persistent and difficult
12 questions of educational policy,’” Gagliardo, 489 F.3d at 113
13 (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v.
14 Rowley, 458 U.S. 176, 206, 208 (1982)). Thus, district courts
15 may not “substitute their own notions of sound educational policy
16 for those of the school authorities which they review.” Rowley,
17 458 U.S. at 206.
18 The deference paid to administrative proceedings is
19 particularly warranted where, as here, the district court’s
20 decision was based solely on the administrative record. Frank G.
21 v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 367 (2d Cir. 2006),
22 cert. denied, 128 S.Ct. 436 (2007). If the SRO’s decision
23 conflicts with the earlier decision of the IHO, the IHO’s
9
1 decision “may be afforded diminished weight.” Gagliardo, 489
2 F.3d at 113 n.2. We “defer to the final decision of the state
3 authorities,” even where “the reviewing authority disagrees with
4 the hearing officer.” Karl ex rel. Karl v. Bd. of Educ. of
5 Geneseo Cent. Sch. Dist., 736 F.2d 873, 877 (1984).
6 To receive federal funding under the IDEA, states are
7 required to provide disabled children with a “free appropriate
8 public education.” 20 U.S.C. § 1412(a)(1)(A). Parents who
9 believe that the state has failed to provide such an education
10 “may, at their own financial risk, enroll the child in a private
11 school and seek retroactive reimbursement for the cost of the
12 private school from the state.” Gagliardo, 489 F.3d at 111.
13 To determine whether parents are entitled to tuition
14 reimbursement, we engage in a three-step process. Cerra, 427
15 F.3d at 192. First, we examine whether the state has complied
16 with the procedures set forth in the IDEA. Id. Second, we
17 consider whether the proposed IEP is substantively appropriate in
18 that it is “‘reasonably calculated to enable the child to receive
19 educational benefits.’” Id. (quoting Rowley, 458 U.S. at 206-
20 07). Only if the IEP is procedurally or substantively deficient
21 do we reach the third step and ask whether the private schooling
22 obtained by the parents is appropriate to the child’s needs. Id.23 In fashioning relief, “‘equitable considerations [relating to the
10
1 reasonableness of the action taken by the parents] are
2 relevant.’” Frank G., 459 F.3d at 363-64 (alteration in
3 original) (quoting Sch. Comm. of Burlington v. Dep’t of Educ. of
4 Massachusetts, 471 U.S. 359, 374 (1985)). As the party
5 commencing the administrative review, the parents bear the burden
6 of persuasion as to the inappropriateness of Chappaqua’s IEP and
7 the appropriateness of the private placement. Gagliardo, 489
8 F.3d at 112.
9 I. Procedural Compliance
10 The initial procedural inquiry in an IDEA case “is no mere
11 formality,” as “‘adequate compliance with the procedures
12 prescribed would in most cases assure much if not all of what
13 Congress wished in the way of substantive content in an IEP.’”
14 Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d
15 Cir. 1998) (quoting Rowley, 458 U.S. at 206). “[H]owever, it
16 does not follow that every procedural error in the development of
17 an IEP renders that IEP legally inadequate under the IDEA.” Grim
18 v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003).
19 Here, the district court found that the failure to conduct
20 an FBA in accordance with a N.Y. State regulation was a
21 procedural violation of the IDEA that deprived M.C. of a free
22 appropriate public education. We disagree. We conclude that the
11
1 failure to conduct an FBA here did not render the 2004-2005 IEP
2 legally inadequate.
3 M.C.’s parents contend that Chappaqua was required by state
4 regulation to perform an FBA of M.C. but did not do so.1
5 Assuming such a violation may have occurred, the violation of
6 such a regulation does not compel the conclusion that the 2004-
7 2005 IEP was legally inadequate. The IDEA requires that, in
8 developing an IEP for “a child whose behavior impedes the child’s
9 learning,” the school district must “consider the use of positive
10 behavioral interventions and supports, and other strategies, to
11 address that behavior.” 20 U.S.C. § 1414(d)(3)(B)(i). As the
12 SRO found, Chappaqua satisfied this requirement, and its decision
13 not to also conduct an FBA did not rise to the level of denying
14 M.C. a free appropriate public education.
15 The 2004-2005 IEP provided for strategies to address M.C.’s
16 behavior. The IEP noted M.C.’s attention problems and the need
17 for a personal aide and prompting to maintain M.C.’s focus during
18 class. Chappaqua’s experts testified that these strategies had
1
The IDEA “incorporates some but not all state law concerning
special education.” Bay Shore Union Free Sch. Dist. v. Kain ex
rel. Kain, 485 F.3d 730, 734 (2d Cir. 2007). The state
regulation relied upon by the district court requires a school
district to conduct an FBA as part of its initial evaluation “for
a student whose behavior impedes his or her learning or that of
others, as necessary to ascertain the physical, mental,
behavioral and emotional factors which contribute to the
suspected disabilities.” 8 N.Y.C.R.R. § 200.4(b)(1)(v).
12
1 proven effective. The IEP provided for psychiatric and
2 psychological services to assess M.C.’s tangential and fantasy
3 speech, which had declined in frequency over the 2003-2004 school
4 year and which M.C.’s speech pathologist testified was “minimal.”
5 The Director of Special Education and the school psychologist
6 testified that an FBA of M.C. was unnecessary. Although
7 district-wide special-education teacher Rowland testified that an
8 FBA is warranted for a student whose behavior seriously
9 interferes with instruction, she also testified that “there [are]
10 many factors” involved in determining whether to perform an FBA,
11 and she did not believe an FBA of M.C. was warranted.
12 The preponderance of the evidence supports the SRO’s
13 decision that the IEP adequately addressed M.C.’s behavior, and
14 the sufficiency of Chappaqua’s strategies for dealing with this
15 behavior “is precisely the type of issue upon which the IDEA
16 requires deference to the expertise of the administrative
17 officers.” Grim, 346 F.3d at 382. Thus, the failure to perform
18 an FBA of M.C. did not render the IEP legally inadequate.
19 II. Substantive Adequacy
20 “[A] school district fulfills its substantive obligations
21 under the IDEA if it provides an IEP that is likely to produce
22 progress, not regression, and if the IEP affords the student with
23 an opportunity greater than mere trivial advancement.” Cerra,
13
1 427 F.3d at 195 (internal quotation marks omitted). School
2 districts are not required to furnish “every special service
3 necessary to maximize each handicapped child’s potential.”
4 Rowley, 458 U.S. at 199. Moreover, there is “a strong preference
5 for children with disabilities to be educated, to the maximum
6 extent appropriate, together with their non-disabled peers.”
7 Walczak, 142 F.3d at 122 (internal quotation marks omitted).
8 The district court found that M.C.’s 2004-2005 IEP was
9 substantively deficient because it promoted “learned
10 helplessness” and not independence. Chappaqua argues, however,
11 that the district court failed to accord appropriate deference to
12 the SRO’s decision that the IEP adequately addressed M.C.’s
13 independence. We agree with Chappaqua.
14 “Because administrative agencies have special expertise in
15 making judgments concerning student progress, deference is
16 particularly important when assessing an IEP’s substantive
17 adequacy.” Cerra, 427 F.3d at 195. Here, the SRO identified
18 ways in which Chappaqua developed M.C.’s independence, for
19 example, by decreasing the level of prompting where it was no
20 longer needed. The IEP also provided for team meetings with the
21 parents every four to six weeks to discuss M.C.’s progress,
22 including the level of prompting required, and stressed
23 independence in the following of daily routines and the
14
1 application of reading and math skills.
2 M.C. also made progress toward independence in co-taught
3 classes during the 2003-2004 year. The June 2004 progress report
4 indicated that he had mastered the goal of independently
5 following classroom routines. The Director of Special Education
6 testified that M.C. had learned to recognize and alleviate
7 distractions on his own by asking his classmates to stop making
8 noise. And M.C. no longer needed prompting and an escort to use
9 the bathroom. Although there was testimony that the school
10 psychologist and M.C.’s general-education teacher nodded their
11 heads in agreement when M.C.’s mother expressed concern in March
12 2004 that he was not making progress, it is by no means clear
13 that they agreed with her concern, given that they both testified
14 to M.C.’s progress over the 2003-2004 school year.
15 We therefore defer to the SRO’s finding that the IEP
16 adequately addressed the need for M.C. to develop independence,
17 and thus was not substantively deficient under the IDEA. See
18 Karl, 736 F.2d at 877.
19 Because we find that M.C.’s 2004-2005 IEP was neither
20 procedurally flawed nor substantively deficient, we need not
21 reach the issues whether the private placement at Eagle Hill was
22 appropriate, see Cerra, 427 F.3d at 192, or whether equitable
23 considerations affect relief, see Frank G., 459 F.3d at 363-64.
15
1 CONCLUSION
2 For the foregoing reasons, we REVERSE the judgment and
3 REMAND to the district court with instructions to enter judgment
4 in Chappaqua’s favor.
16