     16-3046-cv
     Jusino 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 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   7th day of July, two thousand seventeen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PIERRE N. LEVAL,
 9            REENA RAGGI,
10                 Circuit Judges.
11   _____________________________________
12
13   ANN M. JUSINO, RAMON K. JUSINO,
14   individually and on behalf of
15   Plaintiffs’ son, W.J.,
16
17                       Plaintiffs-Appellants,
18
19                v.                                                    16-3046
20
21   NEW YORK CITY DEPARTMENT OF EDUCATION,
22   AKA New York City Board of Education,
23   AKA District 31/CSE 17,
24
25                 Defendant-Appellee.
26   _____________________________________
27
                                                1
 1   FOR PLAINTIFFS-APPELLANTS:    Ann M. Jusino, Ramon K. Jusino,
 2                                 pro se, Staten Island, NY.
 3
 4   FOR DEFENDANT-APPELLEE:       Deborah A. Brenner, Daniel
 5                                 Matza-Brown, Assistant
 6                                 Corporation Counsel, for Zachary
 7                                 W. Carter, Corporation Counsel of
 8                                 the City of New York, New York, NY.
 9

10        Appeal from a judgment of the United States District Court
11   for the Eastern District of New York (Vitaliano, J.).

12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
13   DECREED that the judgment of the district court is AFFIRMED.

14        Appellants Ann and Ramon Jusino, pro se, sue the New York
15   City Department of Education (“DOE”) under the Individuals with
16   Disabilities Education Improvement Act (“IDEA”), 20 U.S.C.
17   § 1400 et seq. They claim that the DOE failed to offer their
18   son, W.J., a free appropriate public education (“FAPE”) by
19   proposing to place him in a single-story school building, which
20   allegedly would not permit W.J. to meet a physical therapy
21   benchmark in his individualized education plan (“IEP”):
22   progress on his ability to climb and descend a flight of stairs.
23   At the impartial hearing, a DOE witness testified that the
24   school could implement the benchmark using a three-step model
25   of stairs and an external set of stairs on an adjacent building.
26   The district court granted summary judgment in favor of the DOE,
27   reasoning that the impartial hearing officer (“IHO”) could rely
28   on the DOE’s witness and that the placement was appropriate.
29   The Jusinos appealed. We assume the parties’ familiarity with
30   the underlying facts, the procedural history of the case, and
31   the issues on appeal.

32        The IDEA aims to “ensure that all children with
33   disabilities have available to them a free appropriate public
34   education . . . designed to meet their unique needs . . . [and]
35   to ensure that the rights of children with disabilities and
36   parents of such children are protected.” 20 U.S.C.
37   § 1400(d)(1)(A)-(B). If a school district fails to offer a
38   FAPE, parents may unilaterally enroll their child in private
                                    2
 1   school and seek tuition reimbursement. See Forest Grove Sch.
 2   Dist. v. T.A., 557 U.S. 230, 247 (2009); Hardison v. Bd. of Educ.
 3   of the Oneonta City Sch. Dist., 773 F.3d 372, 376 (2d Cir. 2014).
 4   Reimbursement is granted only when “(1) the proposed IEP failed
 5   to provide the student with an appropriate public education;
 6   (2) the parent’s private placement was appropriate to the
 7   child’s needs; and (3) equitable considerations support the
 8   parent’s claim.” Hardison, 773 F.3d at 376 (internal quotation
 9   marks omitted). The first prong also encompasses challenges
10   to a proposed school placement. See generally M.O. v. N.Y.C.
11   Dep’t of Educ., 793 F.3d 236 (2d Cir. 2015) (applying
12   reimbursement standard to proposed placement challenges).
13   “This framework is known as the Burlington/Carter test.” Id.
14   at 243 (internal quotation marks omitted).

15        “We review de novo the district court’s grant of summary
16   judgment in an IDEA case. Summary judgment in this context
17   involves more than looking into disputed issues of fact; rather,
18   it is a ‘pragmatic procedural mechanism’ for reviewing
19   administrative decisions.” Id. (quoting A.C. ex rel M.C. v.
20   Bd. of Educ., 553 F.3d 165, 171 (2d Cir. 2009)). The district
21   court “must give due weight to the administrative proceedings,
22   mindful that the judiciary generally lacks the specialized
23   knowledge and experience necessary to resolve persistent and
24   difficult questions of educational policy.” Id. (quoting
25   A.C., 553 F.3d at 171).

26     I.   Deference and Burden

27        The district court correctly deferred to the IHO’s
28   decision. “Courts generally defer to the final decision of the
29   state authorities, even where the reviewing authority disagrees
30   with the hearing officer,” but the state authorities’ “factual
31   findings must be reasoned and supported by the record to warrant
32   deference.” M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 241
33   (2d Cir. 2012) (internal quotation marks omitted).
34   “Additionally, the courts should defer to the IHO’s analysis
35   when considering an issue not reached by the [state review
36   officer (‘SRO’)].” C.F. ex rel R.F. v. N.Y.C. Dep’t of Educ.,
37   746 F.3d 68, 77 (2d Cir. 2014). When a state administrative
38   decision is given deference, the party challenging the decision

                                    3
 1   bears “the burden of demonstrating that the respective Review
 2   Officers erred.” M.H., 685 F.3d at 225 n.3.

 3        The district court deferred to the IHO on the
 4   stair-climbing benchmark, reasoning that the SRO did not reach
 5   whether the proposed placement was appropriate. The Jusinos
 6   challenge that deference on the ground that the IHO did not fully
 7   address their argument that implementing W.J.’s stair-climbing
 8   benchmark required an internal flight of stairs. The IHO did
 9   not specifically address stair-climbing, but concluded that the
10   Jusinos’ “expressed concern about the specific building and
11   classroom, . . . even when combined with their impressionistic
12   response based on a building tour, hardly constitute a
13   legitimate basis for declining placement in an offered
14   otherwise-appropriate program.” App’x at 15. Although the
15   IHO’s decision did not specifically address the benchmark, it
16   considered the DOE’s evidence and the Jusinos’ arguments
17   regarding the adequacy of the proposed placement.
18   Accordingly, the IHO’s decision was entitled to deference, and
19   the Jusinos bore the burden of demonstrating that the decision
20   was erroneous. See M.H., 685 F.3d at 258 (“The IHO’s
21   determination was based on his assessment of the credibility
22   of the witnesses testifying before him, and his own
23   understanding of educational methodology. It was entitled to
24   deference on that basis.” (internal citation omitted)). In any
25   event, even if no deference was due, we would conclude that the
26   placement was adequate for the reasons stated below.

27     II. Retrospective Testimony

28        The Jusinos primarily argue that Maria Dinneny, an
29   administrator at the proposed placement, P.S. 373R, offered
30   impermissible retrospective testimony. In an IDEA case, a
31   parent cannot prevail by speculating that a proposed placement
32   “with the capacity to implement a given student’s IEP will
33   simply fail to adhere to that plan’s mandates.” M.O., 793 F.3d
34   at 244. But “it is not speculative to find that an IEP cannot
35   be implemented at a proposed school that lacks the services
36   required by the IEP.” Id. If a parent mounts a
37   non-speculative challenge, one that focuses on the proposed
38   placement’s “lack of IEP-mandated services,” the school
39   district must show the adequacy of the placement. Id. at 245.
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 1   That evidence cannot be retrospective “testimony that certain
 2   services not listed in the IEP would actually have been provided
 3   to the child if he or she had attended the school district’s
 4   proposed placement.” R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d
 5   167, 185 (2d Cir. 2012). “While testimony that materially
 6   alters the written plan is not permitted, testimony may be
 7   received that explains or justifies the services listed in the
 8   IEP.” Id. at 186; see id. at 186-87 (“[I]f an IEP states that
 9   a specific teaching method will be used to instruct a student,
10   . . . [t]he district . . . may not introduce testimony that a
11   different teaching method, not mentioned in the IEP, would have
12   been used.”).

13        Dinneny’s testimony did not run afoul of this rule. W.J.’s
14   IEP set a benchmark to “climb and descend 1 flight of stairs,
15   step over step, without railing and while maintaining his head
16   in neutral posture 80% of the time.” App’x at 2. It did not
17   prescribe any particular methodology for reaching that
18   benchmark, such as the use of an internal staircase. Dinneny
19   testified that P.S. 373R could implement the benchmark with a
20   stair model or external stairs. The testimony did not concern
21   the provision of “additional services beyond those listed in
22   the IEP.” R.E., 694 F.3d at 186. Therefore, Dinneny’s
23   testimony was not impermissibly retrospective.

24     III. Adequacy of the Proposed Placement

25        The district court correctly concluded that P.S. 373R was
26   an adequate placement. The Jusinos argue that P.S. 373R could
27   not implement the stair-climbing benchmark because it had no
28   internal flight of stairs. They cite B.R. v. N.Y.C. Dep’t of
29   Educ., in which the IEP required one-on-one physical therapy
30   services while the school offered only classroom-based group
31   therapy. 910 F. Supp. 2d 670, 677 (S.D.N.Y. 2012). A school
32   administrator testified that the student would have received
33   one-on-one services, without explaining how or whether other
34   students received one-on-one services. See id. at 677-78.
35   The district court rejected the testimony as conclusory. See
36   id. at 678-79.

37        By contrast, Dinneny testified that P.S. 373R could
38   implement W.J.’s stair-climbing benchmark by using a stair

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 1   model or an external set of stairs. That was not conclusory.
 2   Accordingly, even if the IHO’s decision did not merit deference,
 3   the DOE met its burden of demonstrating that the proposed
 4   placement would adequately implement the IEP goals.

 5     IV. Adequacy of the IEP

 6        The Jusinos argue in their reply brief that, by describing
 7   the IEP as setting “measurable annual goals,” the DOE opened
 8   the door to arguments about the inadequacy of the IEP itself.
 9   Appellants’ Reply Br. at 1. However, that phrase did not raise
10   a substantive argument that the IEP was adequate, and therefore
11   did not open the door to a challenge to the IEP itself.

12        We have considered the Jusinos’ remaining arguments and
13   find them to be without merit. Accordingly, we AFFIRM the
14   judgment of the district court.

15                                FOR THE COURT:
16                                CATHERINE O’HAGAN WOLFE, CLERK




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