     16-1838
     J.C., et. al. v. Katonah-Lewisboro 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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 9th day of May, two thousand seventeen.
 5
 6       PRESENT: JOHN M. WALKER, Jr.,
 7                DENNIS JACOBS,
 8                BARRINGTON D. PARKER,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       J.C., individually and on behalf of
13       Tate C., a minor, and S.C.,
14       individually and on behalf of Tate
15       C., a minor,
16                Plaintiffs-Appellees,
17
18                    -v.-                                               16-1838
19
20       KATONAH-LEWISBORO SCHOOL DISTRICT,
21                Defendant-Appellant.
22
23       - - - - - - - - - - - - - - - - - - - -X
24
25       FOR APPELLANT:                        JAMES P. DROHAN, Thomas, Drohan,
26                                             Waxman, Petigrow & Mayle, LLP,
27                                             Hopewell Junction, New York.
28

                                                  1
 1   FOR APPELLEES:              LAWRENCE D. WEINBERG,
 2                               Bloomfield, New Jersey.
 3
 4       Appeal from judgment of the United States District

 5   Court for the Southern District of New York (Karas, J.).

 6       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

 7   AND DECREED that the judgment of the district court be

 8   AFFIRMED.

 9       The Katonah-Lewisboro School District (the “School

10   District”) appeals from the judgment of the United States

11   District Court for the Southern District of New York (Karas,

12   J.) granting summary judgment to the parents of T.C. on

13   their Individuals with Disabilities Education Act (“IDEA”)

14   claim for reimbursement of private school tuition.    We

15   assume the parties’ familiarity with the underlying facts,

16   the procedural history, and the issues presented for review.

17   We affirm.

18       T.C., now 14, suffers from multiple disabilities

19   affecting his attention span, ability to learn, and motor

20   skills.   He attended classes at the School District from

21   kindergarten through third grade, then transferred to a

22   private school called the Prospect School for fourth grade

23   through sixth.

24       The IDEA guarantees children with disabilities a “free

25   and appropriate public education.”   R.E. v. N.Y.C. Dep't of


                                   2
 1   Educ., 694 F.3d 167, 174-75 (2d Cir. 2012).      If a public

 2   school has failed in that obligation, the statute allows

 3   parents to transfer their child into private school and seek

 4   retroactive tuition reimbursement from the state.      See C.F.

 5   ex rel. R.F. v. N.Y.C. Dep't of Educ., 746 F.3d 68, 73 (2d

 6   Cir. 2014).   T.C.’s parents now seek reimbursement for

 7   tuition they paid to the Prospect School during T.C.’s fifth

 8   and sixth grades.1   For T.C.’s parents to prevail, they must

 9   show that: 1) the School District failed to provide T.C.

10   with a free and appropriate public education; 2) they placed

11   T.C. in an appropriate private school; and 3) the equities

12   favor reimbursement.   Id.

13       As is required, T.C.’s parents first sought

14   reimbursement through New York state’s administrative

15   process before filing suit in federal court.      The Initial

16   Hearing Officer (“IHO”) found that the parents were entitled

17   to reimbursement; but a State Review Officer (“SRO”),

18   functioning as a second level of administrative review,

19   reversed that decision.      Courts generally owe deference to

20   the decision of an SRO, but that deference only extends

21   insofar as the SRO decision is well-reasoned and persuasive.

22   R.E., 694 F.3d at 189.


         1
           T.C. was also at the Prospect School in fourth grade,
     but that year is not at issue in this appeal.
                                      3
 1       We affirm the district court’s holding that the

 2   decision of the SRO is entitled to reduced deference, and

 3   that the School District proposed class sizes for T.C. which

 4   were too large for him to receive an appropriate public

 5   education.    Under the IDEA, a school district must annually

 6   create a written Independent Education Program (“IEP”) for

 7   each student with disabilities.    Id. at 175.   T.C.’s IEPs

 8   for fifth and sixth grade both proposed a classroom of

 9   twelve students, one teacher, and two teaching

10   aides/assistants (educators refer to this as a “12:1:2”

11   classroom).   However, a pediatric neuropsychologist

12   recommended a classroom with eight students, one teacher,

13   and one teaching aide/assistant (an “8:1:1” classroom), and

14   a clinical neuropsychologist testified that a classroom with

15   twelve students would be too overwhelming for T.C. to learn.

16   (Both neuropsychologists were privately hired by T.C.’s

17   parents.)    The parents contend that the School District’s

18   failure to provide T.C. with an 8:1:1 classroom on his IEPs

19   denied him the free and appropriate public education the

20   IDEA promises.

21       The SRO was not required to automatically accept the

22   neuropsychologists’ recommendations as to class size, but he

23   was required to consider the recommendations and, if he

24   rejected them, to convincingly explain why.      See M.H. v.

                                    4
 1   N.Y.C. Dep’t of Educ., 685 F.3d 217, 244 (2d Cir. 2012)

 2   (holding that when it comes to deference, “the

 3   persuasiveness of a particular administrative finding, or

 4   the lack thereof, is likely to tell the tale” (internal

 5   quotation marks omitted)).

 6       The SRO offered two principle reasons for dismissing

 7   the 8:1:1 class size recommendation.   First, he noted that

 8   the ratio of adults to students in a 12:1:2 class is the

 9   same as in an 8:1:1 class.   But the decision fails to

10   account for the evidence that--given that T.C. is easily

11   distracted–-the number of students in the classroom counts,

12   not just the ratio of students to adults.   The SRO also

13   fails to acknowledge that the educational system tends to

14   focus on the number of teachers in a classroom rather than

15   the number of adults, presumably because a qualified special

16   education teacher may be more effective than a teaching aide

17   or assistant.   Second, the SRO dismissed the

18   neuropsychologists’ recommendations on the ground that

19   T.C.’s distraction issues could be mitigated enough so that

20   T.C. could learn in a larger classroom.   None of the

21   evidence he relies on for that point, however, suggests that

22   T.C.’s distraction problems could be resolved without an

23   8:1:1 classroom.



                                   5
 1       We therefore agree with the district court that the

 2   SRO’s ruling that the School District provided T.C. with a

 3   free and appropriate public education is entitled to

 4   diminished deference.   We instead defer to the decision of

 5   the IHO, and we agree that the School District’s 12:1:2

 6   classroom would not have provided T.C. with a free and

 7   appropriate public education.       M.H., 685 F.3d at 246 (“it is

 8   entirely appropriate for the court, having in its turn found

 9   the SRO’s conclusions unpersuasive even after appropriate

10   deference is paid, to consider the IHO’s analysis, which is

11   also informed by greater educational expertise than that of

12   judges”).2

13       The SRO never reached the questions of whether

14   placement at the Prospect School was appropriate or whether

15   the equities favored reimbursement.      The IHO answered both

16   those questions in the affirmative, however, and in the

17   absence of an SRO holding, we may defer to the IHO’s



         2
           This appeal was briefed after the Supreme Court’s
     decision in Endrew F., which interpreted the free and
     appropriate public education due under IDEA. Endrew F. ex
     rel. Joseph F. v. Douglas Cty. Sch. Dist., 137 S. Ct. 988
     (2017). Because we conclude that the School District failed
     to provide T.C. with a free and appropriate public education
     under the existing precedent in this circuit, we need not
     decide whether Endrew F. raised the bar for a free and
     appropriate public education or left Second Circuit
     precedent intact (the Supreme Court’s decision certainly did
     not reduce the force of the requirement).
                                     6
 1   conclusions.   C.F., 746 F.3d at 82.   Those conclusions are

 2   well-supported by the evidence and we agree with them: the

 3   Prospect School had a sophisticated special education

 4   program tailored to T.C.’s needs, and his parents actively

 5   cooperated with the School District in developing IEPs each

 6   year.

 7       For the foregoing reasons, and finding no merit in the

 8   parties’ other arguments, we hereby AFFIRM the judgment of

 9   the district court.

10
11
12
13                               FOR THE COURT:
14                               CATHERINE O’HAGAN WOLFE, CLERK
15




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