     15-1200
     M.M. v. New York City Department of Education

                           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, held
 2   at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3   York, on the 26th day of July, two thousand sixteen.
 4
 5   Present:
 6
 7               PIERRE N. LEVAL,
 8               DEBRA ANN LIVINGSTON ,
 9               SUSAN L. CARNEY,
10                      Circuit Judges.
11   _____________________________________
12
13   M.M., ON BEHALF OF AND AS PARENT OF J.S.,
14   A STUDENT WITH A DISABILITY,
15
16                           Plaintiff-Appellant,
17
18                   v.                                                     15-1200-cv
19
20   NEW YORK CITY DEPARTMENT OF
21   EDUCATION,
22                     Defendant-Appellee.
23   _____________________________________
24
25   For Plaintiff-Appellant:                        ERIN MCCORMACK-HERBERT, Thomas Gray,
26                                                   Partnership for Children’s Rights, New York,
27                                                   NY.
28
29   For Defendant-Appellee:                         Deborah A. Brenner, DIANA LAWLESS, for
30                                                   Zachary W. Carter, Corporation Counsel of the
31                                                   City of New York, New York, NY.
1              UPON DUE CONSIDERATION WHEREOF it is hereby ORDERED,

2    ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

3              Plaintiff-Appellant M.M., the parent of J.S., a 22-year-old male with autism,

4    appeals an award of summary judgment in favor of Defendant-Appellee New York City

5    Department of Education (“DOE”) on M.M.’s claim for reimbursement of private

 6   education expenses under the Individuals with Disabilities Education Act (“IDEA”), 20

 7   U.S.C. §§ 1400 et seq. See M.M. ex rel. J.S. v. N.Y.C. Dep’t of Educ., No. 14 Civ. 1542,

 8   2015 WL 1267910 (S.D.N.Y. Mar. 18, 2015).              We review the award of summary

 9   judgment de novo, although in the IDEA context we do so mindful that “the

10   responsibility for determining whether a challenged [individualized education program

11   (“IEP”)] will provide a child with [a free and appropriate public education (“FAPE”)]

12   rests in the first instance with administrative hearing and review officers.” M.W. ex rel.

13   S.W. v. N.Y.C. Dep’t of Educ., 725 F.3d 131, 138 (2d Cir. 2013). We assume the parties’

14   familiarity with the underlying facts and procedural history of the case, and with the

15   issues on appeal, which we describe here only as necessary to explain our decision to

16   affirm.

17             The IDEA provides states with funds to ensure that “all children with disabilities”

18   receive a FAPE. Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). A

19   state receiving these funds must then create an IEP for each qualifying student, tailored to

20   that child’s abilities and needs, see 20 U.S.C. § 1414(d), which is “reasonably calculated

21   to enable the child to receive educational benefits.” Bd. of Educ. v. Rowley, 458 U.S.

22   176, 207 (1982). If a parent believes that her child’s IEP does not comply with the




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1    IDEA, the parent may file a “due process complaint” with the appropriate state agency.

2    See 20 U.S.C. § 1415(b)(6).

3           On appeal, M.M. asserts that the district court erred in affirming the State Review

4    Officer’s (“SRO’s”) determination. M.M. argues principally that the DOE failed (1) to

5    determine with M.M. at J.S.’s IEP meeting and to specify in J.S.’s IEP the mandated

6    frequency, location, and duration of J.S.’s transition services, see 20 U.S.C. §

7    1414(d)(1)(A)(i)(IV), (VII), and (2) to conduct a mandated triennial evaluation of J.S.,

8    including required vocational and transition assessments, see 20 U.S.C. §

 9   1414(a)(2)(B)(ii). These procedural defects, M.M. contends, denied J.S.’s right to a

10   FAPE. We disagree.

11          Procedural violations result in the denial of a FAPE only “if they [1] ‘impeded the

12   child’s right to a [FAPE],’ [2] ‘significantly impeded the parents’ opportunity to

13   participate in the decisionmaking process,’ or [3] ‘caused a deprivation of educational

14   benefits.’” R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 190 (2d Cir. 2012) (citations

15   omitted). “Multiple procedural violations may cumulatively result in the denial of a

16   FAPE even if the violations considered individually do not.” Id. In assessing whether

17   such a denial has occurred, we give “due weight” to the state proceedings, affording

18   particular deference where state administrative “review has been thorough and careful.”

19   M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 240-41 (2d Cir. 2012).

20          While the SRO did not specifically address in his March 18, 2014 decision the

21   application of the IDEA’s “frequency, location, and duration” requirement to J.S.’s

22   recommended transitional and vocational services, see 20 U.S.C. § 1414(d)(1)(A)(i)(IV),

23   (VII), the SRO discussed the IEP’s provision for those services at length. The SRO




                                                 3
 1   thoroughly and carefully reviewed the IEP’s transitional and vocational components,

 2   properly using testimony to explain how these services would be implemented. See R.E.,

 3   694 F.3d at 185-87. As pertinent here, the SRO recognized that “the May 2012 IEP did

 4   not specifically break down how much time the student would receive academic

 5   instruction compared to how much time the student would receive vocational

 6   instruction.” J.A. 170.

 7          The failure to specify whether J.S.’s “classroom” would be onsite or offsite and

 8   what proportion of those classroom sessions would be devoted to vocational or academic

 9   instruction may well have constituted a procedural defect in the IEP. But even assuming

10   that this omission constituted such an error, it neither “impede[d J.S.’s] right to a

11   [FAPE],” nor did it result in an IEP that “significantly impeded [M.M.’s] opportunity to

12   participate in the decisionmaking process.” R.E., 694 F.3d at 190. On the basis of

13   testimony and a review of the IEP itself, the SRO determined that the IEP’s discussion of

14   the vocational program, when coupled with the IEP’s annual goals and services sections,

15   provided sufficient information to allow the school to develop a vocational program

16   capable of providing J.S. with a FAPE.        See id. at 186 (SRO may properly credit

17   testimony that “explains or justifies the services listed in the IEP”). Likewise, the extent

18   of M.M.’s engagement with the IEP process and the timing of her objection to J.S.’s

19   vocational placement confirm that the DOE did not “significantly imped[e M.M.’s]

20   ability to assess the adequacy of the IEP.” T.K. v. N.Y.C. Dep’t of Educ., 810 F.3d 869,

21   877 (2d Cir. 2016). As the SRO noted, M.M. was involved in “important junctures in

22   development of [the] IEP,” obtaining an independent evaluation of J.S., providing it to




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 1   the committee charged with developing the IEP, and participating in the May 2012

 2   meeting at which the IEP was prepared. Id.

 3          As to M.M.’s second argument, we agree that the DOE should have performed a

 4   reevaluation of J.S. at least once within the three years preceding the May 22, 2012 IEP

 5   meeting. See 20 U.S.C. § 1414(a)(2)(B)(ii). Nevertheless, “[a]lthough the applicable

 6   statutory provision does mandate the DOE to conduct a triennial reevaluation of a student

 7   at least every three years, the lack of such a reevaluation in this case did not render the

 8   IEP inappropriate.” M.M. ex rel. J.S., 2015 WL 1267910, at *5.            The SRO, after

 9   “thorough and careful” review of the record, M.H., 685 F.3d at 241, determined that the

10   committee that had developed J.S.’s IEP had before it “sufficient evaluative information,”

11   J.A. 165. The committee had before it three reports concerning J.S. In addition, the

12   committee “considered input” from M.M. and two teachers affiliated with the school in

13   which J.S. was enrolled at the time, including his “then-current English language arts

14   teacher.” J.A. 165. According the SRO’s opinion “due weight,” we conclude that the

15   DOE’s procedural violation did not deny J.S. a FAPE. M.H., 685 F.3d at 240.

16          We have considered M.M.’s remaining arguments and find them to be without

17   merit. Accordingly, we AFFIRM the judgment of the district court.

18                                                        FOR THE COURT:
19                                                        Catherine O’Hagan Wolfe, Clerk
20
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