     15-2798
     Dervishi v. Stamford Bd. 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 ASUMMARY 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
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   27th day of June, two thousand sixteen.
 5
 6   PRESENT: DENNIS JACOBS,
 7            GUIDO CALABRESI,
 8            REENA RAGGI,
 9                          Circuit Judges.
10
11   - - - - - - - - - - - - - - - - - - - -X
12   SHKELQESA DERVISHI, on behalf of T.D.,
13            Plaintiff-Appellant,
14
15                -v.-                                           15-2798
16
17   STAMFORD BOARD OF EDUCATION,
18            Defendant-Appellee.
19   - - - - - - - - - - - - - - - - - - - -X
20
21   FOR APPELLANT:                          Shkelqesa Dervishi, pro se,
22                                           Stamford, CT.
23
24   FOR APPELLEE:                           Patrick M. Fayhe, Shipman &
25                                           Goodwin, Hartford, CT.
26



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 1        Appeal from a judgment of the United States District Court
 2   for the District of Connecticut (Eginton, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
 5   DECREED that the judgment of the district court be AFFIRMED in
 6   part, VACATED in part, and REMANDED for further proceedings.
 7
 8        Shkelqesa Dervishi, pro se, appeals from the judgment of
 9   the United States District Court for the District of Connecticut
10   (Eginton, J.) affirming an administrative impartial hearing
11   officer’s (“IHO”) decision denying her Individuals with
12   Disabilities Education Act (“IDEA”) claims brought on behalf
13   of her minor autistic son, T.D., against the Stamford Board of
14   Education (“Board”). We assume the parties’ familiarity with
15   the underlying facts, the procedural history, and the issues
16   presented for review.

17        We review de novo the district court’s grant of summary
18   judgment in an IDEA case, recognizing that summary judgment in
19   this context “involves more than looking into disputed issues
20   of fact; rather, it is a pragmatic procedural mechanism for
21   reviewing administrative decisions.” M.O. v. N.Y.C. Dep’t of
22   Educ., 793 F.3d 236, 243 (2d Cir. 2015) (internal quotation
23   marks and citation omitted). Thus, our de novo review seeks
24   only to independently verify that the administrative record
25   supports the district court’s determination that the
26   individualized education program (“IEP”) was adequate. M.W.
27   ex rel. S.W. v. N.Y.C. Dept. of Educ., 725 F.3d 131, 138 (2d
28   Cir. 2013).

29        1. The IDEA’s purpose is “to ensure that all children with
30   disabilities have available to them a free appropriate public
31   education” (“FAPE”). 20 U.S.C. § 1400(d)(1)(A). To this end,
32   the IDEA requires that states provide disabled children a “basic
33   floor of opportunity” that is likely to benefit the child. T.K.
34   v. N.Y.C. Dept. of Educ., 810 F.3d 869, 875 (2d Cir. 2016). The
35   IDEA’s “principal mechanism” for achieving this is the
36   individualized education program (“IEP”), which is a “written
37   document that must include the child’s level of performance,
38   goals for [his] improvement, and a plan about how to achieve
39   that improvement.” Id.


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 1        If a state fails to provide a FAPE to a disabled child, the
 2   parents may elect an alternative placement and seek
 3   reimbursement from the state. Doe v. East Lyme Bd. of Educ.,
 4   790 F.3d 440, 448 (2d Cir. 2015). Tuition reimbursement
 5   entails a three-step inquiry: (i) whether the school district
 6   has complied with the IDEA’s procedural requirements; (ii)
 7   whether the school district has complied with the IDEA’s
 8   substantive requirements, i.e., whether the IEP is reasonably
 9   calculated to enable the child to receive educational benefits;
10   and (iii) whether the parent’s alternative placement is
11   “appropriate to the child’s needs.” Id. at 449 (internal
12   quotation marks omitted). Parents must prevail at all three
13   steps to receive reimbursement. Id.

14        Procedural errors render an IEP inadequate only if they
15   “impeded the child’s right to a [FAPE]”; “significantly impeded
16   the parents’ opportunity to participate in the decisionmaking
17   process”; or “caused a deprivation of educational benefits.”
18   20 U.S.C. § 1415(f)(3)(E)(ii). Substantive challenges must
19   demonstrate that an IEP is not “reasonably calculated to enable
20   the child to receive educational benefits.” Doe, 790 F.3d at
21   450 (internal quotation marks and citation omitted). We owe
22   substantial deference to state administrative officers when
23   considering claims of substantive inadequacy. Id.

24        Dervishi’s procedural and substantive challenges to the
25   2010-2011 IEP fail. The IDEA does not require the parents’
26   presence at planning and placement team (“PPT”) meetings;
27   rather, it requires only that the school board give parents the
28   opportunity to participate in the decision about their child’s
29   educational placement. Cerra v. Pawling Cent. Sch. Dist., 427
30   F.3d 186, 193 (2d Cir. 2005). The record shows that the Board
31   gave Dervishi and her husband ample opportunity to so
32   participate: the parents participated in the first two PPT
33   meetings, the Board attempted repeatedly to schedule the next
34   PPT meeting around the parents’ summer travel plans, and the
35   parents attended the fifth (and final) PPT meeting where they
36   presented an independent evaluation and suggested alternative
37   placement options. The Board rejected the parents’ proposed
38   alternative placement options, and was within its rights to do
39   so: “the parent’s right of participation is not a right to ‘veto’
40   the agency’s proposed IEP.” Doe, 790 F.3d at 449.

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 1        The 2010-2011 IEP offered T.D. placement at the Roxbury
 2   Elementary School, which had a special education program and
 3   could provide T.D. with the enhanced staffing, occupational
 4   therapy, and speech therapy, all as outlined in his IEP. There
 5   is no basis in the record to reject the IHO’s determination that
 6   this combination of placement and services was substantively
 7   appropriate. Because we conclude that the Board provided T.D.
 8   with a FAPE for the 2010-2011 school year, we need not consider
 9   whether the parents’ alternate placements were appropriate.
10   See id.

11        2. The stay-put provision of the IDEA provides that
12   “during the pendency of any proceedings conducted pursuant to
13   this section . . . the child shall remain in [his] then-current
14   educational placement.” 20 U.S.C. § 1415(j). The
15   “then-current educational placement” is typically: (i) “the
16   placement described in the child’s most recently implemented
17   IEP”; (ii) “the operative placement actually functioning at the
18   time when the stay put provision of the IDEA was invoked”; or
19   (iii) “the placement at the time of the previously implemented
20   IEP.” Mackey ex rel. Thomas M. v. Bd. of Educ. for Arlington
21   Cent. Sch. Dist., 386 F.3d 158, 163 (2d Cir. 2004) (internal
22   quotation marks and alterations omitted). The purpose of this
23   provision is “to maintain the educational status quo while the
24   parties’ dispute is being resolved” and requires that the school
25   district “continue funding whatever educational placement was
26   last agreed upon for the child until the relevant administrative
27   and judicial proceedings are complete.” T.M. ex rel. A.M. v.
28   Cornwall Cent. Sch. Dist., 752 F.3d 145, 152, 171 (2d Cir. 2014).
29   A school district is responsible for funding educational
30   placement during the pendency of a dispute under the IDEA
31   regardless of whether the case is meritorious or whether the
32   child would otherwise have a substantive right to that
33   placement. Doe, 790 F.3d at 453.

34        On November 18, 2010, when Dervishi sought administrative
35   review, the placement “actually functioning at the time” was
36   the home program that the school district had agreed to fund
37   for the previous school year. The Board only agreed to fund
38   T.D.’s home program on a temporary basis; but, because “the
39   Board’s obligation to fund stay-put placement is rooted in
40   statute, not contract,” the parties’ intent as to the duration

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 1   of T.D.’s home program does not alter the Board’s reimbursement
 2   obligation under the stay-put provision. Id. The district
 3   court erred in concluding that the IEP created in August 2010
 4   constituted the current placement for purposes of the stay-put
 5   obligation because it was never implemented or agreed to by the
 6   parents. In light of the foregoing, we vacate the district
 7   court’s denial of Dervishi’s stay-put claim. On remand, the
 8   district court should (i) calculate the total value of the home
 9   program, as specified in the settlement agreement, for the
10   period from November 18, 2010 until the dispute over the
11   2010-2011 IEP is no longer pending, and (ii) order the Board
12   to pay that amount to Dervishi. Id. at 457; Bd. of Educ. of
13   Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 484 (2002).

14        3. Dervishi challenges the dismissal of her claim that the
15   Board breached the parties’ 2009 settlement agreement, in which
16   they agreed on a course of action for T.D. for the 2009-2010
17   school year. While the IHO did not issue a ruling on this claim,
18   factual findings were made that doom Dervishi’s claim. The IHO
19   found that the Board followed the procedure the parties created
20   for selecting consultants, timely held PPT meetings, acted
21   reasonably in trying to accommodate the parents, and timely
22   evaluated and assessed T.D. There is no basis in the record
23   to conclude the Board breached the 2009 settlement agreement.

24        4. To determine whether an IHO is biased, courts consider
25   whether the record shows that the hearing was fair and
26   impartial. See, e.g., E.S. ex rel. B.S. v. Katonah-Lewisboro
27   Sch. Dist., 742 F. Supp. 2d 417, 434-35 (S.D.N.Y. 2010). The
28   record is plain: the IHO conducted a fair and impartial hearing.

29        Accordingly, and finding no merit in Dervishi’s other
30   arguments, we hereby AFFIRM in part and VACATE in part the
31   judgment of the district court, and REMAND for further
32   proceedings.

33                                FOR THE COURT:
34                                CATHERINE O’HAGAN WOLFE, CLERK




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