14-1473-cv
M.O. & G.O. v. N.Y.C. Dep’t of Educ.


                                                   UNITED STATES COURT OF APPEALS
                                                      FOR THE SECOND CIRCUIT

                                                                     August Term, 2014

                                          (Argued: March 6, 2015                     Decided: July 15, 2015)

                           Docket No. 14-1473-cv
________________________________________________________________________

                                    M.O. and G.O., individually and on behalf of D.O., a minor,

                                                                                     Plaintiffs-Appellants,

                                                                            - v. -

                                      NEW YORK CITY DEPARTMENT OF EDUCATION,

                                       Defendant-Appellee.
________________________________________________________________________

Before:
                                CALABRESI and HALL, Circuit Judges, and RAKOFF, District Judge.

       Appeal from a judgment of the United States District Court for the Southern District
of New York (Cedarbaum, J.), affirming a State Review Officer’s determination to deny
reimbursement for a unilateral private placement under the Individuals with Disabilities
Education Act. We hold that the State Review Officer correctly determined that Defendant-
Appellee New York City Department of Education provided a free appropriate public
education. The judgment of the district court is therefore AFFIRMED. Because the
decisions of the district court and State Review Officer could, however, be interpreted as
requiring a child to attend physically a proposed placement school before challenging that
school’s ability to implement the child’s individualized education plan, we further clarify that
our decision in R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012), imposes no such
requirement.


                                                                     LAWRENCE D. WEINBERG, Bloomfield, NJ, for Plaintiffs-
                                                                          Appellants.
																																																																		
	

  The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York,
sitting by designation.

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14-1473-cv
M.O. & G.O. v. N.Y.C. Dep’t of Educ.



                                              MARTA SOJA ROSS, for Zachary W. Carter, Corporation
                                                   Counsel of the City of New York, New York,
                                                   NY, for Defendant-Appellee.



PER CURIAM:

         This Individuals with Disabilities Education Act (“IDEA”) case concerns a

reimbursement action for a unilateral private placement in which Plaintiffs-Appellants M.O.

and G.O. challenge the adequacy of the public school proposed by Defendant-Appellee

New York City Department of Education (“DOE” or “the school district”) for the

placement of their child during the 2011-2012 school year.1

                                                BACKGROUND

I.       Statutory and Regulatory Background

         The IDEA requires states receiving federal funds to “provide ‘all children with

disabilities’ a ‘free appropriate public education[]’ (‘FAPE’).” Hardison v. Bd. of Educ. of the

Oneonta City Sch. Dist., 773 F.3d 372, 376 (2d Cir. 2014) (quoting 20 U.S.C. § 1412(a)(1)(A)).

“A FAPE consists of special education and related services tailored to meet the unique needs

																																																																		
	
1	“This opinion, dealing as it does with the IDEA and practices thereunder, is replete with acronyms.” M.H. v. N.Y.C.

Dep’t of Educ., 685 F.3d 217, 223 (2d Cir. 2012). We therefore find it useful to supply the below list of acronyms used in
this opinion.

CSE      Local Committee on Special Education
D.O.     Son of Plaintiffs M.O. & G.O.
DOE      New York City Department of Education
FAPE     Free Appropriate Public Education
G.O.     Plaintiff, father of D.O.
ICT      Integrated Co-Teaching
IEP      Individualized Education Plan
IHO      Impartial Hearing Officer
M.O.     Plaintiff, mother of D.O.
SRO      State Review Officer

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of a particular child, which are reasonably calculated to enable the child to receive

educational benefits . . . .” Reyes ex rel. R.P. v. N.Y.C. Dep’t of Educ., 760 F.3d 211, 214 (2d

Cir. 2014) (citations and internal quotation marks omitted). “To ensure that qualifying

children receive a FAPE, a school district must create an individualized education program

(‘IEP’) for each such child.” R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 175 (2d Cir. 2012)

(citing 20 U.S.C. § 1414(d); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 197

(2d Cir. 2002) (describing the IEP as the “centerpiece” of the IDEA system)). “The IEP is

‘a written statement that sets out the child’s present educational performance, establishes

annual and short-term objectives for improvements in that performance, and describes the

specially designed instruction and services that will enable the child to meet those

objectives.” R.E., 694 F.3d at 175 (quoting D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d

503, 507-08 (2d Cir. 2006)). The IEP “must be likely to produce progress, not regression,

and must afford the student with an opportunity greater than mere trivial advancement.

However, it need not furnish every special service necessary to maximize each handicapped

child’s potential.” M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 224 (2d Cir. 2012) (citations,

internal quotation marks, and alterations omitted).

        The State of New York “has assigned responsibility for developing appropriate IEPs

to local Committees on Special Education (‘CSEs’).” Id. (citation, internal quotation marks,

and alterations omitted); N.Y. Educ. Law § 4402(1)(b)(1). “CSEs are comprised of members

appointed by the local school district’s board of education, and must include the student’s

parent(s), a regular or special education teacher, a school board representative, a parent

representative, and others.”           R.E., 694 F.3d at 175 (citing N.Y. Educ. Law

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M.O. & G.O. v. N.Y.C. Dep’t of Educ.


§ 4402(1)(b)(1)(a)). In developing a particular child’s IEP, “the CSE must [] be mindful of

the IDEA’s strong preference for ‘mainstreaming,’ or educating children with disabilities

‘[t]o the maximum extent appropriate’ alongside their non-disabled peers.” Gagliardo v.

Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007) (quoting 20 U.S.C. § 1412(a)(5)); see

also Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998).

        “Parents who . . . believe that a FAPE is not being provided to their child may

unilaterally enroll the child in a private school and seek tuition reimbursement from the

school district” by filing what is known as a “due process complaint.” Hardison, 773 F.3d at

376 (citations and internal quotation marks omitted); N.Y. Educ. Law § 4404(1); 20 U.S.C.

§ 1412(a)(10)(C)(ii). The due process complaint may challenge “any matter relating to the

identification, evaluation, or educational placement of the child, or the provision of a free

appropriate public education.” 20 U.S.C. § 1415(b)(6)(A). “Filing the complaint triggers an

administrative procedure by which the board of education appoints an Independent Hearing

Officer (‘IHO’) who conducts a formal hearing and fact-finding.” Hardison, 773 F.3d at 376;

N.Y. Educ. Law § 4404(1). The decision of an IHO may be appealed to a State Review

Officer (“SRO”), Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379-80 (2d Cir. 2003) (citing

N.Y. Educ. L. § 4404(2); 20 U.S.C. § 1415(g)), and an SRO’s decision may be challenged by

filing a civil action in state or federal court, Hardison, 773 F.3d at 376 (citing N.Y. Educ. Law

§ 4404(3); 20 U.S.C. § 1415(i)(2)(A)).

II.     Facts and Procedural History

        D.O., the son of M.O. and G.O, is a twelve-year-old child with a speech or language

impairment.      D.O. attended second grade at P.S. 41, in an integrated co-teaching

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(“ICT”)2 class with one general education teacher and one special education teacher, during

the 2010-2011 school year. He had transferred to P.S. 41 from a private Catholic school in

September 2010. In December 2010, D.O.’s teachers at P.S. 41 contacted M.O. and G.O. to

discuss concerns over D.O.’s educational progress and the need for a re-evaluation of D.O.’s

educational needs. M.O. and G.O. opted to have D.O.’s evaluation performed privately by

Dr. Herman M. Davidovicz, Ph.D.

                The CSE convened in March 2011 to develop D.O.’s IEP for the 2011-2012 school

year. Development of D.O.’s IEP was delayed, however, at M.O. and G.O’s request to

await the conclusion of D.O.’s private evaluation. M.O. and G.O provided the evaluation

results to the school district in April 2011, and the CSE reconvened on June 9, 2011. The

CSE meeting was attended by M.O., G.O., D.O.’s second grade general education teacher,

D.O.’s second grade special education teacher, D.O.’s principal, D.O.’s school psychologist,

a school district representative, a parent member, and a parent advocate. The resulting IEP

classified D.O. as a student with a speech or language impairment and recommended that he

repeat the second grade in a 12:1:13 special placement classroom in a community school.

The IEP further recommended D.O.’s weekly attendance at the following: one thirty-

minute session of individual speech-language therapy; two thirty-minute sessions of speech-

language therapy in a group of three; eight English Language Arts (“ELA”) sessions in an



																																																																		
	
2
   “Integrated co-teaching services means the provision of specially designed instruction and
academic instruction provided to a group of students with disabilities and nondisabled students.”
N.Y. Comp. Codes R. & Regs. tit. 8, § 200.6(g).
3
  “12:1:1” denotes a classroom with a ratio of 12 students to 1 teacher to 1 paraprofessional.

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M.O. & G.O. v. N.Y.C. Dep’t of Educ.


ICT class setting; one thirty-minute session of individual counseling; and one thirty-minute

session of counseling in a group of five.

        By Final Notice of Recommendation dated June 24, 2011, the DOE informed M.O.

and G.O. that D.O. had been placed at P.S. 213 for the 2011-2012 school year. M.O. visited

P.S. 213 and, in a June 29, 2011 letter, rejected this school. The letter observed, inter alia,

that D.O.’s IEP had recommended that he repeat the second grade but P.S. 213 did not have

a second grade classroom and P.S. 213’s third grade classroom included both third and

fourth grade students. The June 29, 2011 letter also informed the DOE that M.O. and G.O.

had signed a contract and paid a deposit for the 2011-2012 school year at the Lowell School,

a state-authorized private education day school, and that it was their intention to send D.O.

to the Lowell School and seek tuition reimbursement if an appropriate placement was not

offered.    M.O. sent another letter to the DOE on July 5, 2011 cautioning that if an

appropriate placement was not offered in a timely manner, she would have no alternative but

to unilaterally enroll D.O. at the Lowell School and seek tuition reimbursement at public

expense.

        By Final Notice of Recommendation dated July 6, 2011, the DOE informed M.O.

and G.O. that D.O. had been reassigned to P.S. 159 for the 2011-2012 school year. M.O.

responded, in a July 11, 2011 letter, that she had called P.S. 159 but was unable to visit

because the school was not in session during the summer months. The July 11, 2011 letter

further advised that M.O. and G.O. could not accept D.O.’s placement at P.S. 159 because

they had no idea whether the school was appropriate and that they would send D.O. to the

Lowell School and seek tuition reimbursement if an appropriate placement was not offered

	                                             6
	
14-1473-cv
M.O. & G.O. v. N.Y.C. Dep’t of Educ.


in a timely manner. In August 2011, M.O. and G.O. informed the DOE of their decision to

enroll D.O. in the Lowell School for the 2011-2012 school year based on their belief that

D.O. was not offered an appropriate placement. D.O. attended third grade at the Lowell

School for the 2011-2012 school year.

                In September 2011, M.O. and G.O. initiated their reimbursement action for D.O.’s

unilateral placement in the Lowell School by filing a due process complaint and request for a

hearing before an IHO.                                               The due process complaint alleged that D.O.’s IEP was

substantively inadequate for the following reasons: (1) the size of the proposed classroom,

the student-teacher ratio, and the size of the school building were inappropriate; (2) the level

of related services mandated by the IEP was inappropriate; (3) the IEP’s recommendation

that D.O. repeat the second grade was detrimental; (4) the IEP failed to address D.O.’s need

for a language-based program; and (5) the IEP failed to address D.O.’s need for 1:1 reading

support.4

                The due process complaint also challenged the adequacy of the district’s proposed

placement schools, which were identified as P.S. 213 and P.S. 46. It is unclear why the due

process complaint raised challenges to the adequacy of P.S. 46 rather than P.S. 159; the

record contains no evidence suggesting that D.O. had ever been assigned to P.S. 46. In any

event, the due process complaint alleged that M.O. and G.O. had viewed P.S. 46 on June 20,

2011 and had informed the DOE that this school was inappropriate because: (1) the size of

the school building and the student-teacher ratio were inappropriate; (2) the teaching

																																																																		
	
4
  Counsel for Plaintiffs conceded at oral argument that D.O.’s IEP was substantively and procedurally
adequate.

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M.O. & G.O. v. N.Y.C. Dep’t of Educ.


methodology was inappropriate because it did not address D.O.’s need for a language-based

program; (3) it was not a 12-month placement; and (4) the other students in the class did not

have similar needs. The due process complaint further alleged that M.O. and G.O. had

viewed P.S. 213 on or after June 24, 2011 and had informed the DOE that this school was

inappropriate because: (1) the size of the school building and the student-teacher ratio were

inappropriate; (2) the teaching methodology was inappropriate because it did not address

D.O.’s need for a language-based program; (3) it was not a 12-month placement; (4) the

other students in the class did not have similar needs; (5) the school building was not secure;

(6) the school did not have a second grade; (7) the third grade class contained both third and

fourth graders; (8) the reading program was inappropriate because it did not offer enough

1:1 reading support; and (9) the gym schedule might become inappropriate due to an

impending retirement.

        An impartial hearing was held on January 17, 2012. Eleven witnesses testified, and

the parties submitted 15 exhibits. M.O. provided the only evidence relating to the adequacy

of the district’s proposed placement schools. She testified that the “first attempt[ed]”

assignment was for a second grade classroom consisting “of probably 7 or 8 paras along with

maybe 10 or 12 children” and that she “felt[,] if [D.O.] was put in there[,] he would shut

down completely.” Confidential Joint App’x (“C.J.A.”) at 114. M.O. also testified that the




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M.O. & G.O. v. N.Y.C. Dep’t of Educ.


second attempted assignment “was [for] a combination third/fourth grade” classroom and

that she “thought the work would be just too much and overwhelming for [D.O.].” Id.5

                The IHO determined, in a January 24, 2012 decision, that D.O. was not denied a

FAPE and that M.O. and G.O. were therefore not entitled to a reimbursement for their

unilateral placement of D.O. in the Lowell School for the 2011-2012 school year. The IHO

rejected M.O. and G.O.’s challenges to the substantive and procedural adequacy of the IEP

and found that the school district had demonstrated the appropriateness of its

recommendation that D.O. repeat the second grade in a 12:1:1 special placement classroom

in a community school. The IHO, however, did not separately address M.O. and G.O.’s

challenges to the adequacy of the district’s proposed placement schools.

                M.O. and G.O. appealed the IHO’s decision to an SRO. They argued that the IHO

erred in finding that D.O. was provided a FAPE because the school district presented no

evidence regarding the adequacy of the proposed placements schools. Specifically, M.O. and

G.O. contended that the school district did not present any evidence that the proposed

placement classroom: (1) was grouped appropriately; (2) could implement D.O.’s IEP;

(3) had an open seat for D.O.; (4) would address D.O.’s speech or language impairment; or

(5) could provide D.O. with eight periods of ELA per week as mandated by the IEP.

                The SRO affirmed the IHO’s decision and dismissed G.O. and M.O.’s appeal by

decision dated April 6, 2012. The SRO initially observed that M.O. had visited the first

assigned school offered by the school district (P.S. 213) and that the district subsequently
																																																																		
	
5
 M.O. testified that the first attempted placement school was “P.S. 230,” although she was “not
quite sure” of the school’s name; she did not identify the second attempted placement school by
name. C.J.A. at 114.

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14-1473-cv
M.O. & G.O. v. N.Y.C. Dep’t of Educ.


offered a second assigned school (P.S. 159) based on M.O. and G.O.’s objections to the first

assignment.      The SRO then rejected M.O. and G.O.’s “unsubstantiated allegations”

regarding the adequacy of the second assigned school because “meaningful analysis of

[those] claims . . . would require [a] [] determin[ation of] what might have happened had the

district been required to implement [D.O.’s] IEP.” Id. at 18. The SRO observed that, under

this Court’s decision in R.E., the sufficiency of the district’s offered program is to be

determined on the basis of the IEP itself and that M.O. and G.O. rejected the IEP and

enrolled D.O. at the Lowell School prior to the time that the district became obligated to

implement D.O.’s IEP.          The SRO therefore found that “the district did not have an

obligation, under these factual circumstances, to present evidence that it provided special

education services in conformity with [D.O.’s] IEP. . . .” Id. The SRO reasoned that, “[i]f it

becomes clear that the student will not be educated under the proposed IEP, there can be no

denial of a FAPE due to the failure to implement it.” Id. Even having assumed that D.O.

had attended P.S. 159, moreover, the SRO found that there was no evidence in the record to

suggest that the district would have deviated from D.O.’s IEP in a material or substantial

way.

        M.O. and G.O. filed an action challenging the SRO’s decision in the United States

District Court for the Southern District of New York. Neither party submitted additional

evidence regarding the adequacy of P.S. 159 as permitted under 20 U.S.C. § 1415(i)(2)(C).

The parties cross-moved for summary judgment and the district court granted summary

judgment in favor of the school district on March 27, 2014. See M.O. v. N.Y.C. Dep’t of Educ.,

996 F. Supp. 2d 269 (S.D.N.Y. 2014). The district court observed that, under this Court’s

	                                              10
	
14-1473-cv
M.O. & G.O. v. N.Y.C. Dep’t of Educ.


decision in R.E., evaluation of whether a child was denied a FAPE “must focus on the

written plan offered to the parents. Speculation that the school district will not adequately

adhere to the IEP is not an appropriate basis for unilateral placement.” Id. at 271 (quoting

R.E., 694 F.3d at 195) (ellipsis and internal quotation marks omitted). The district court

then rejected M.O. and G.O.’s argument that the DOE was required to present evidence to

the IHO on P.S. 159’s ability to implement D.O.’s IEP. Id. The district court reasoned that

“[i]t would be inconsistent with R.E. to require the DOE to proffer evidence regarding the

actual classroom D.O. would have attended, where it had become clear that D.O. would

attend private school and not be educated under the IEP.” Id.

        Judgment was entered on March 28, 2014, and Plaintiffs timely appealed.

                                             DISCUSSION

        “We review de novo the district court’s grant of summary judgment in an IDEA case.

Summary judgment in this context involves more than looking into disputed issues of fact;

rather, it is a ‘pragmatic procedural mechanism’ for reviewing administrative decisions.”

A.C. ex rel. M.C. v. Bd. of Educ., 553 F.3d 165, 171 (2d Cir. 2009) (citations and internal

quotation marks omitted).              “While the district court must base its decision on the

preponderance of the evidence, it must give due weight to the administrative proceedings,

mindful that the judiciary generally lacks the specialized knowledge and experience necessary

to resolve persistent and difficult questions of educational policy.” Id. at 171 (citations,

internal quotation marks, and alterations omitted). “Deference is particularly appropriate

when the state officer’s review ‘has been thorough and careful,’ but still we do not ‘simply



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M.O. & G.O. v. N.Y.C. Dep’t of Educ.


rubber stamp administrative decisions.’” R.E., 694 F.3d at 184 (quoting Walczak, 142 F.3d at

129).

        Parents who unilaterally place their child in a private school do so “at their financial

risk.” Reyes, 760 F.3d at 215. “Under New York’s Education Law § 4404(1)(c), the local

school board bears the initial burden of establishing the validity of its plan at a due process

hearing. If the board fails to carry this burden, the parents bear the burden of establishing

the appropriateness of their private placement and that the equities favor them. This

framework is known as the Burlington/Carter test.” R.E., 694 F.3d at 184 (footnote and

citations omitted).

        The school district contends that, under our decision in R.E., a child must physically

attend a proposed placement school before challenging that school’s ability to implement

their IEP. The SRO and the district court appear to have agreed. See C.J.A. at 18 (SRO

Dec.) (“If it becomes clear that the student will not be educated under the proposed IEP,

there can be no denial of a FAPE due to the failure to implement it.”); M.O., 996 F. Supp.

2d at 27 (“It would be inconsistent with R.E. to require the DOE to proffer evidence

regarding the actual classroom D.O. would have attended, where it had become clear that

D.O. would attend private school and not be educated under the IEP.”). Other courts in

this Circuit have interpreted R.E. in a similar fashion. See, e.g., S.W. v. New York Dep’t of

Educ., No. 14-CV-1754, 2015 WL 1097368, at *14 (S.D.N.Y 2015) (observing that “[d]istrict

courts have reached differing conclusions as to their role in evaluating the ability of schools

to comply with an IEP in cases where parents unilaterally choose to place their child in a

private school prior to the implementation of the IEP” and that “[s]ome courts have read

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M.O. & G.O. v. N.Y.C. Dep’t of Educ.


R.E. broadly enough to exclude all prospective challenges to a child’s proposed placement”

(citations omitted)). Because R.E. does not foreclose all prospective challenges to a child’s

proposed placement school, we find it necessary to clarify the proper reach of our holding in

R.E.

        R.E. concerned reimbursement actions for unilateral private placements by several

sets of parents of autistic children. The primary challenge advanced by the R.E. plaintiffs

was to “retrospective testimony”—“testimony by DOE personnel at the IHO hearing that

certain services not listed in the IEP would actually have been provided to the child if he or

she had attended the school district’s proposed placement.” 694 F.3d at 185. We held that

the DOE could not use retrospective testimony to rehabilitate an otherwise deficient IEP

because “the IEP must be evaluated prospectively as of the time of its drafting.” Id. at 186.

        Our decision in R.E. further observed that the parents of one of the children, E.Z.-

L., “d[id] not seriously challenge the substance of the IEP[] . . . [and] [i]nstead [] argue[d] that

the written IEP would not have been effectively implemented at [the proposed placement

school].” Id. at 195. E.Z.-L.’s parents had asserted that although the school district’s

proposed placement school offered the services mandated by the IEP, some students

receiving certain services, such as occupational therapy, were “underserved.” See 2d Cir.

Dtk. No. 11-655-cv, Doc. 45 (Br.) at 44-45. We rejected this argument, concluding that

“[s]peculation that the school district will not adequately adhere to the IEP is not an

appropriate basis for unilateral placement” because the provision of a FAPE must be

evaluated “prospectively.” R.E., 694 F.3d at 195. The portion of our opinion in R.E.

addressing E.Z.-L.’s contention, therefore, stands for the unremarkable proposition that

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challenges to a school district’s proposed placement school must be evaluated prospectively

(i.e., at “the time of the parents’ placement decision”) and cannot be based on mere

speculation. Id.; see also B.R. ex rel. K.O. v. N.Y.C. Dep’t of Educ., 910 F. Supp. 2d 670,

677 (S.D.N.Y. 2012) (Rakoff, J.) (Under R.E., “the Court evaluates whether, at the time [the

parent] was actually considering the proposed placement, the school could offer [services] in

line with the IEP”).

        While it is speculative to conclude that a school with the capacity to implement a

given student’s IEP will simply fail to adhere to that plan’s mandates, see R.E., 694 F.3d at

195, it is not speculative to find that an IEP cannot be implemented at a proposed school

that lacks the services required by the IEP. For example, it is not speculative to conclude

that an IEP recommending a seafood-free environment, for a child with a life threatening

seafood allergy, could not be implemented at a proposed school that was not seafood free.

See D.C. ex rel. E.B. v. N.Y.C. Dep’t of Educ., 950 F. Supp. 2d 494, 513 (S.D.N.Y. 2013). Nor

is it speculative to conclude that an IEP recommending one-on-one occupational therapy,

outside of the classroom, could not be implemented at a school that provided only in-class

occupational therapy in a group setting. See B.R., 910 F. Supp. 2d at 676-79.

        School districts do not have “carte blanche” to assign a child to a school “that cannot

satisfy the IEP’s requirements,” T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 420 (2d Cir.

2009), and R.E. does not foreclose all prospective challenges to a proposed placement

school’s capacity to implement a child’s IEP. To conclude otherwise would require parents

to send their child to a facially deficient placement school prior to challenging that school’s

capacity to implement their child’s IEP, which is “antithetical to the IDEA’[s]

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reimbursement process.” See V.S. ex rel. D.S. v. N.Y.C. Dep’t of Educ., 25 F. Supp. 3d 295,

300 (E.D.N.Y. 2014).

                Turning to the case at bar, we note that the due process complaint’s challenges to P.S.

1596 were not of the type permitted by R.E.—prospective challenges to P.S. 159’s capacity

to provide the services mandated by the IEP. They were, instead, substantive attacks on

D.O.’s IEP that were couched as challenges to the adequacy of P.S. 159.7 For example, the

due process complaint challenged D.O.’s placement at P.S. 159 on the grounds that the

school building was too large, the student-teacher ratio was too large, and the language-based

program was inappropriate, which were the very same challenges directed at D.O.’s IEP.

These challenges, therefore, do not relate to P.S. 159’s capacity to implement the IEP; they

relate to the appropriateness of the IEP’s substantive recommendations.                        Because the

substantive adequacy of the IEP must be determined by reference to the written IEP itself,

R.E., 694 F.3d at 187, the school district did not have the burden to produce evidence

demonstrating P.S. 159’s adequacy in response to these arguments. Similarly, although M.O.

testified that she visited P.S. 159 and found that the placement was inappropriate, her

assertion was based on her own belief that “if [D.O.] was put in there[,] he would shut down

completely,” C.J.A. at 114, rather than on P.S. 159’s lack of IEP-mandated services. This
																																																																		
	
6
  We assume, as the SRO and district court appear to have done, that the due process complaint’s allegations
relating to P.S. 46 were in fact challenges to P.S. 159. Absent this assumption, any challenge to the adequacy
of P.S. 159 would be foreclosed. See R.E., 694 F.3d at 188 n.4.
7
  With the exception of one challenge to the district’s initial proposed placement school, P.S. 213, the due
process complaint did not raise any prospective challenges to the assigned schools’ capacity to implement
D.O.’s IEP. The sole viable challenge was that the IEP had recommended D.O. repeat the second grade, but
P.S. 213 did not have a second grade classroom. When notified of this deficiency in M.O.’s June 29, 2011
letter, the school district reassigned D.O. from P.S. 213 to P.S. 159. Thus, P.S. 213’s lack of the IEP-
mandated second grade classroom is not a valid basis for concluding that D.O. was denied a FAPE.

	                                                                    15
	
14-1473-cv
M.O. & G.O. v. N.Y.C. Dep’t of Educ.


challenge too relates to the substantive adequacy of D.O.’s IEP, which must be assessed by

reference to the written plan itself, and did not trigger a duty on the part of the school

district to provide evidence regarding P.S. 159’s adequacy.8

                Although the SRO and district court appear to have concluded that the school district

was not required to produce evidence on the adequacy of P.S. 159, based on an erroneous

determination that R.E. requires a child physically to attend a proposed placement school

before challenging that school’s ability to implement the child’s IEP, “we are entitled to

affirm the judgment on any basis that is supported by the record.” Crawford v. Franklin Credit

Mgmt. Corp., 758 F.3d 473, 482 (2d Cir. 2014) (citing Mauro v. S. New England Telecomms., Inc.,

208 F.3d 384, 387 n.2 (2d Cir. 2000)). Because we find that the due process complaint’s

challenges to P.S. 159 were in fact substantive attacks on D.O.’s IEP rather than prospective

challenges to P.S. 159’s capacity to provide the services mandated by D.O.’s IEP, we agree

with the SRO and district court’s ultimate conclusions that (1) the school district was not

required to present evidence regarding the adequacy of P.S. 159 at the impartial hearing, and

(2) the school district provided D.O. a FAPE. As a result, M.O. and G.O. are not entitled to

reimbursement for their unilateral placement of D.O. in the Lowell School for the 2011-

2012 school year.

                                                                     CONCLUSION

                For the foregoing reasons, we affirm the judgment of the district court.

																																																																		
	
8
  While the due process complaint also raised challenges to P.S. 159 on the grounds that it was not a 12-
month placement and the other children in the classroom did not have similar needs, these issues stemmed
from the IEP’s recommendation that D.O. be placed in an ICT class and from the absence in the IEP of a
recommended 12-month placement—not from P.S. 159’s inability to implement the IEP.

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