       11-4697
       D. D-S, v. Southold Union Free School District


                                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 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
 2     for the Second Circuit, held at the Daniel Patrick Moynihan
 3     United States Courthouse, 500 Pearl Street, in the City of
 4     New York, on the 26th day of December, two thousand twelve.
 5
 6     PRESENT:
 7                    ROBERT A. KATZMANN,
 8                    BARRINGTON D. PARKER,
 9                    RICHARD C. WESLEY,
10                             Circuit Judges.
11
12
13     D. D-S, INDIVIDUALLY AND AS PARENT
14     AND NEXT FRIEND TO B. D-S, A CHILD
15     WITH A DISABILITY,
16
17                                   Plaintiff-Appellant,
18
19                    v.                                           11-4697
20
21     SOUTHOLD UNION FREE SCHOOL DISTRICT,
22
23                                   Defendant-Appellee.
24
25     FOR APPELLANT:                PHILIP B. ABRAMOWITZ, Law Offices
26                                        of Andrew K. Cuddy, Auburn, NY.
27
28     FOR APPELLEE:                 CHRISTOPHER F. VENATOR,
29                                        Ingerman Smith, LLP, Hauppauge, NY.
30
31
32
1        Appeal from the judgment of the United States District

2    Court for the Eastern District of New York (Seybert, J.).

3
4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the September 9, 2011 judgment entered in

6    the United States District Court for the Eastern District of

7    New York (Seybert, J.) is AFFIRMED.

8        On January 13, 2009, Plaintiff-Appellant D. D-S filed a

9    complaint seeking tuition reimbursement under the Individuals

10   with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et.

11   seq., after Defendant-Appellee Southold Union Free School

12   District failed to offer her daughter, B., a free appropriate

13   public education (“FAPE”) for the 2008-2009 school year.

14   Plaintiff had placed her daughter at Landmark School in

15   Massachusetts.   The impartial hearing officer denied

16   reimbursement, and the state review officer affirmed.

17   Plaintiff then commenced a proceeding in the Eastern District

18   of New York challenging the decision.    After cross-motions

19   for summary judgment, the district court denied Plaintiff’s

20   motion and affirmed the District’s motion, finding that

21   Landmark was an inappropriate placement.    Plaintiff appeals

22   the denial of tuition reimbursement.    We assume the parties’

23   familiarity with the facts, the procedural history of the

24   case, and the issues on appeal.
                                    2
1        Because the District concedes that it did not provide B.

2    with a FAPE for the 2008-2009 school year, we only consider

3    whether “the private schooling obtained by the parents [was]

4    appropriate to the child’s needs.”     Cerra v. Pawling Cent.

5    Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).    “[C]ourts

6    assessing the propriety of a unilateral placement consider

7    the totality of the circumstances in determining whether that

8    placement reasonably serves a child’s individual needs.”

9    Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006).

10   As the party seeking reimbursement, Plaintiff bears the

11   burden of proving that her unilateral placement was

12   appropriate. See M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d

13   96, 104 (2d. Cir. 2000).

14       Plaintiff argues that the state agency and district

15   court failed to consider the totality of the circumstances

16   and placed too much emphasis on the restrictiveness of the

17   parental placement. We disagree. Although the agency and

18   district court focused their decision on Landmark’s overly

19   restrictive nature, they also thoroughly reviewed the whole

20   record before denying reimbursement.    While it is a well-

21   established concept that parental placements are not subject

22   to the same exacting standards as a public placement, see

23   Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7, 14-15

24   (1993), the restrictiveness of the school environment
                                   3
1    “remains a consideration that bears upon a parent’s choice of

2    an alternative placement and may by considered by a hearing

3    officer in determining whether the placement was

4    appropriate.”     M.S., 231 F.3d at 105.

5        Moreover, Plaintiff has not persuasively argued that the

6    totality of the circumstances made Landmark an appropriate

7    placement. She contends that B.’s academic progress indicates

8    that Landmark was an appropriate placement. However, academic

9    progress alone is not a dispositive indicator of

10   appropriateness. See Gagliardo v. Arlington Cent. Sch. Dist.,

11   489 F.3d 105, 115 (2d Cir. 2007).     Further, she has presented

12   no evidence that this extremely restrictive residential

13   immersion was appropriate for B.’s educational needs.

14   Plaintiff has not persuaded us that the totality of the

15   circumstances warrants tuition reimbursement in this case.

16   See Frank G., 459 F.3d at 364-65.

17       We have considered plaintiff’s remaining arguments and,

18   after a thorough review of the record, find them to be

19   without merit. Accordingly, we AFFIRM the judgment of the

20   district court.

21                                 FOR THE COURT:
22                                 Catherine O’Hagan Wolfe, Clerk
23
24



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