     07-3705-cv
     T.P. v. Mamaroneck Union Free Sch. Dist.

1                        UNITED STATES COURT OF APPEALS

2                               FOR THE SECOND CIRCUIT

3                                      --------

4                                 August Term, 2008

 5   (Argued: December 2, 2008                    Decided: February 3, 2009)
 6
 7                         Docket No. 07-3705-cv
 8   -----------------------------------------------------------X
 9   T.P. and S.P., on behalf of S.P.,
10
11                     Plaintiffs-Appellees,
12
13                     - v. -
14
15   MAMARONECK UNION FREE SCHOOL DISTRICT,
16
17                  Defendant-Appellant.*
18   -----------------------------------------------------------X
19   Before:   JACOBS, Chief Judge, McLAUGHLIN and B.D. PARKER,
20             Circuit Judges.
21
22         Appeal from a judgment of the United States District Court

23   for the Southern District of New York (Brieant, J.) granting

24   summary judgment to Plaintiffs-Appellees on their claim for

25   reimbursement of educational expenses under the Individuals with

26   Disabilities Education Act, 20 U.S.C. §§ 1400 et seq.       We hold

27   that Plaintiffs-Appellees have failed to show that Defendant-

28   Appellant’s educational plan for their autistic child was

29   improperly predetermined, and that the district court erred in



     *
       The Clerk of the Court is directed to amend the official
     caption as set forth above.
1    failing to defer to the administrative experts who found that the

2    plan adequately addressed the child’s transition into the

3    kindergarten classroom.

4         REVERSED and REMANDED.

 5                                 GARY S. MAYERSON, Mayerson &
 6                                 Associates, New York, NY, for
 7                                 Plaintiffs-Appellees.
 8
 9                                 MARK C. RUSHFIELD, Shaw, Perelson,
10                                 May & Lambert, LLP, Highland, NY,
11                                 for Defendant-Appellant.
12
13   PER CURIAM:

14        The Mamaroneck Union Free School District (“Mamaroneck”)

15   appeals from a grant of summary judgment to Plaintiffs T.P. and

16   S.P. by the United States District Court for the Southern

17   District of New York (Brieant, J.).       T.P. and S.P. sued under the

18   Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.

19   §§ 1400 et seq., seeking reimbursement for educational services

20   they provided for their autistic child.

21        T.P. and S.P. objected to Mamaroneck’s plan for special-

22   education services for their son S.P.’s kindergarten year.       They

23   requested an administrative hearing to obtain reimbursement for

24   additional services they deemed necessary.       After a hearing, an

25   Impartial Hearing Officer (“IHO”) denied their claim, and a State

26   Review Officer (“SRO”) affirmed.       S.P.’s parents then pursued

27   their claim in the United States District Court for the Southern

                                        2
1    District of New York.   The district court held that Mamaroneck

2    had violated both the procedural and substantive requirements of

3    the IDEA.   Accordingly, it granted summary judgment to the

4    parents and awarded them reimbursement, as well as attorneys’

5    fees and costs.

6         We reverse and remand with instructions to enter judgment in

7    Mamaroneck’s favor.

8                                BACKGROUND

9         S.P. is an autistic child who attends school in Mamaroneck.

10   Because of his disability, S.P. was entitled under the IDEA to a

11   “free appropriate public education” administered by Mamaroneck

12   according to an “Individualized Education Program” (“IEP”).    See

13   20 U.S.C. §§ 1412(a)(1)(A), 1414(d).

14        In 2003-2004, S.P. attended a regular-education preschool

15   for 10 hours per week, where he was accompanied by a personal

16   aide.   At home, S.P. received 30-35 hours of applied behavioral

17   analysis (“ABA”) therapy per week, 5 hours of ABA “supervision,”

18   and speech and occupational therapy.     ABA is a set of educational

19   principles used to increase or decrease behaviors.    Mamaroneck

20   funded these services pursuant to a settlement agreement after

21   S.P.’s parents disagreed with Mamaroneck’s proposed IEP.

22        In January 2004, Mamaroneck’s Committee on Special Education

23   (the “Committee”), which included S.P.’s parents, began

                                      3
1    considering S.P.’s transition into the school district for

2    kindergarten.   The Committee discussed reevaluating S.P. to aid

3    it in making recommendations for his IEP, and agreed to observe

4    him at his preschool and then reconvene to discuss transition

5    options.    A behavioral consultant retained by Mamaroneck, Susan

6    Young, visited S.P.’s preschool and administered tests in May

7    2004.   Young also interviewed S.P.’s mother, teacher, and speech

8    therapist.   In her report, Young recommended that S.P. attend a

9    special-education kindergarten class.   Young noted that S.P. did

10   not require the intensive instructional services of the autistic

11   population, for example ABA, though she recommended that speech

12   and occupational therapy continue.

13        In June 2004, the Committee met to discuss S.P.’s IEP for

14   2004-2005.   The Committee’s recommendations included placement in

15   a 12-student special-education class with a teacher and two

16   assistants, speech therapy three times per week in a group and

17   once individually, and individual occupational therapy two times

18   per week.

19        After the June meeting, the McCarton Center for

20   Developmental Pediatrics, which had been retained by S.P.’s

21   parents, issued a report containing recommendations contrary to

22   those in Young’s report.   The McCarton Center recommended that

23   S.P. attend a special-education class where he was to be

                                       4
1    accompanied by a full-time personal aide.   It also recommended

2    that S.P. continue receiving ABA at home, including 25 hours per

3    week of ABA therapy, as well as private speech and occupational

4    therapy five times each per week.

5         At the parents’ request, the Committee reconvened in July

6    2004 to review the McCarton report and to continue discussing

7    S.P.’s IEP.   Though Mamaroneck’s consultant, Young, was invited

8    to the meeting and went to the location that morning, she did not

9    attend.   Instead, in the hour before the meeting, she reviewed

10   the McCarton report in the Committee chairperson’s office.

11   Young’s notes of her review include a two-column chart comparing

12   McCarton’s recommendations with her own, which she labeled

13   “School Respon.”   Where McCarton recommended 25 hours of at-home

14   ABA, Young recommended 10 hours of in-school ABA; where McCarton

15   recommended that a full-time personal aide be provided to S.P. at

16   school, Young recommended a part-time personal aide to provide

17   the in-school ABA; and where McCarton recommended five sessions

18   each of private speech and occupational therapy per week, Young

19   recommended, respectively, four and two.

20        During the meeting, S.P.’s parents expressed concern about

21   his transition to a full-day kindergarten program, and requested

22   that Mamaroneck continue providing at-home ABA.   The parents also

23   requested that Mamaroneck provide S.P. with a full-time personal

                                      5
1    aide during school, that Mamaroneck staff observe S.P. over the

2    summer and meet with his home providers, and that his home

3    providers be allowed to attend school at the beginning of the

4    year to assist with his transition and train Mamaroneck staff.

5    The Committee agreed to have Young observe S.P. and communicate

6    with the home providers over the summer, and to provide training

7    to Mamaroneck staff.    However, Young would provide the training

8    and not S.P.’s home providers.    The Committee denied the parents’

9    request for at-home ABA and a full-time personal aide, and

10   instead recommended, consistent with Young’s premeeting notes and

11   in addition to the programs recommended at the June meeting, 10

12   hours of in-school ABA to be provided by a part-time personal

13   aide.    The Committee’s recommendations were adopted in the IEP,

14   which also provided for a team meeting the first week of school

15   and continuing team meetings during the school year, including

16   meetings with S.P.’s home providers.

17          The parents objected to the IEP on the ground that it was

18   insufficient to provide a free appropriate public education to

19   S.P.    They therefore supplemented the IEP with at-home services,

20   including 25 hours of ABA therapy and five hours of individual

21   speech therapy per week, and requested an administrative hearing

22   to obtain reimbursement from Mamaroneck for the cost of these

23   services.

                                       6
1         S.P. began attending the special-education kindergarten

2    class in September 2004.   At the beginning of the school year,

3    S.P. attempted to bite others on approximately six occasions.

4    The biting ended in October.   S.P. was also “scripting,” which

5    involved the off-topic use of language usually about television

6    shows as a calming or avoidance technique.    At the parents’

7    request, Mamaroneck instituted a system for reducing S.P.’s

8    scripting, and the scripting subsided in the first few months of

9    school.

10        An IHO held a hearing on the parents’ request for

11   reimbursement between January and May 2005.    The parents

12   challenged Mamaroneck’s IEP on numerous grounds, including that

13   Mamaroneck (1) improperly predetermined S.P.’s IEP by (a)

14   agreeing upon educational placements before the July Committee

15   meeting and (b) developing educational placements before goals

16   and objectives; and (2) failed to provide appropriately for

17   S.P.’s transition into the kindergarten classroom.

18        During the hearing, witnesses testified inconsistently about

19   the extent to which the Committee discussed goals and objectives

20   for S.P. during the June meeting.    They agreed, however, that

21   programs and placements, and some speech and language goals, were

22   discussed.   Young testified that she was unable to attend the

23   July Committee meeting because of a scheduling mistake.      She

                                      7
1    noted that “School Respon.” in her premeeting notes meant “school

2    responsibility.”   Young did not recall discussing her

3    recommendations with the Committee chairperson before the

4    meeting, and testified that the chairperson was on the phone and

5    attending to other business when Young was reviewing the McCarton

6    report in the chairperson’s office.   The chairperson testified

7    that she obtained Young’s “input into what some of the new

8    recommendations could be” before the meeting.   However, both

9    Young and the chairperson testified that there was no premeeting

10   agreement to adopt Young’s recommendations.

11        At the conclusion of the hearing, the IHO rejected the

12   parents’ arguments and denied their claim for reimbursement.

13        The parents appealed to an SRO, who affirmed.   The SRO found

14   that while Young may have shared her thoughts with Committee

15   members before the July meeting, this did not demonstrate that

16   Mamaroneck impermissibly predetermined S.P.’s IEP.   Nor could the

17   SRO conclude that educational placements were finalized before

18   goals and objectives were developed, given that both were

19   discussed at the June meeting, and placements were modified at

20   the July meeting in response to the parents’ concerns.   The SRO

21   also found that Mamaroneck appropriately planned for S.P.’s

22   transition to the classroom by providing supports and services

23   designed to ease S.P.’s transition, and that the biting and

                                      8
1    scripting that occurred in the first few months of school did not

2    impede S.P.’s learning.

3         The parents pursued their claim in the district court, which

4    granted them summary judgment.     Disagreeing with the IHO and SRO,

5    the district court found that the 2004-2005 IEP was procedurally

6    and substantively deficient because Mamaroneck predetermined the

7    ABA services it was willing to provide to S.P. in 2004-2005, made

8    placement recommendations before finalizing S.P.’s goals and

9    objectives, and failed to appropriately address S.P.’s transition

10   into kindergarten by not providing at-home ABA services.    The

11   district court further found that reports from 2005 indicated

12   S.P. had regressed in certain areas, and though it found that the

13   reports were not outcome determinative, they confirmed that the

14   2004-2005 IEP was insufficient.1    Accordingly, the district court

15   awarded the parents reimbursement for the cost of the additional

16   services they provided S.P., and attorneys’ fees and costs.

17        Mamaroneck now appeals.

18                              DISCUSSION



     1
       Mamaroneck charges error in the district court’s consideration
     of 2005 reports. This Court has never ruled on whether district
     courts may consider retrospective evidence in assessing the
     substantive validity of an IEP. See D.F. ex rel. N.F. v. Ramapo
     Cent. Sch. Dist., 430 F.3d 595, 599 (2d Cir. 2005) (remanding for
     the district court to consider the issue in the first instance).
     We need not do so here, as resolution of the issue is unnecessary
     to our disposition of this case.
                                      9
1         We review de novo the district court’s grant of summary

2    judgment in an IDEA case.   Cerra v. Pawling Cent. Sch. Dist., 427

3    F.3d 186, 191 (2d Cir. 2005).   Summary judgment in this context

4    involves more than looking into disputed issues of fact; rather,

5    it is a “pragmatic procedural mechanism” for reviewing

6    administrative decisions.   Lillbask ex rel. Mauclaire v. Conn.

7    Dep’t of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005) (internal

8    quotation marks omitted).

9         “[T]he role of the federal courts in reviewing state

10   educational decisions under the IDEA is circumscribed.”

11   Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d

12   Cir. 2007) (internal quotation marks omitted).   While the

13   district court must base its decision “on the preponderance of

14   the evidence,” 20 U.S.C. § 1415(i)(2)(C)(iii), it “must give ‘due

15   weight’ to [the administrative] proceedings, mindful that the

16   judiciary generally ‘lack[s] the specialized knowledge and

17   experience necessary to resolve persistent and difficult

18   questions of educational policy,’” Gagliardo, 489 F.3d at 113

19   (quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v.

20   Rowley, 458 U.S. 176, 206, 208 (1982)).   Thus, district courts

21   may not “substitute their own notions of sound educational policy

22   for those of the school authorities which they review.”    Rowley,

23   458 U.S. at 206.

                                     10
1           To receive federal funding under the IDEA, states are

2    required to provide disabled children with a “free appropriate

3    public education.”    20 U.S.C. § 1412(a)(1)(A).    Parents who

4    believe that the state has failed to provide such an education

5    may pay for private services and seek reimbursement from the

6    school district for “expenses that it should have paid all along

7    and would have borne in the first instance had it developed a

8    proper IEP.”    Sch. Comm. of Burlington v. Dep’t of Educ. of

9    Mass., 471 U.S. 359, 370-71 (1985).

10          To determine whether parents are entitled to tuition

11   reimbursement, we engage in a three-step process.      Cerra, 427

12   F.3d at 192.    First, we examine whether the state has complied

13   with the procedures set forth in the IDEA.    Id.    Second, we

14   consider whether the proposed IEP is substantively appropriate in

15   that it is “‘reasonably calculated to enable the child to receive

16   educational benefits.’”    Id. (quoting Rowley, 458 U.S. at 206-

17   07).    Only if the IEP is procedurally or substantively deficient

18   do we reach the third step and ask whether the private schooling

19   obtained by the parents is appropriate to the child’s needs.        Id.

20   In fashioning relief, “‘equitable considerations [relating to the

21   reasonableness of the action taken by the parents] are

22   relevant.’”    Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356,

23   363-64 (2d Cir. 2006)(alteration in original)(quoting Burlington,

                                      11
1    471 U.S. at 374).   As the party commencing the administrative

2    review, the parents bear the burden of persuasion as to the

3    inappropriateness of Mamaroneck’s IEP and the appropriateness of

4    the private services.   Gagliardo, 489 F.3d at 112.

5    I.   Procedural Compliance

6         The initial procedural inquiry in an IDEA case “is no mere

7    formality,” as “‘adequate compliance with the procedures

8    prescribed would in most cases assure much if not all of what

9    Congress wished in the way of substantive content in an IEP.’”

10   Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir.

11   1998) (quoting Rowley, 458 U.S. at 206).   In considering whether

12   Mamaroneck satisfied the procedural requirements of the IDEA, “we

13   focus on whether the [parents] had an adequate opportunity to

14   participate in the development of [the] IEP.”   Cerra,   427 F.3d

15   at 192.

16        Here, the parents argue that Mamaroneck predetermined

17   educational programs for S.P. in violation of the procedural

18   requirements of the IDEA by: (1) adopting programs for S.P.’s IEP

19   before the July Committee meeting, and (2) making placement

20   recommendations before finalizing S.P.’s goals and objectives.

21   These arguments fail.

22        First, Mamaroneck’s consideration of educational programs

23   for S.P. before the July Committee meeting did not violate the

                                     12
1    procedural requirements of the IDEA.      The parents contend that

2    the Committee chairperson repeated Young’s premeeting

3    recommendations at the meeting and therefore must have discussed

4    them with Young before the meeting.      Even if there was such

5    discussion, this does not mean the parents were denied meaningful

6    participation at the meeting.      IDEA regulations allow school

7    districts to engage in “preparatory activities . . . to develop a

8    proposal or response to a parent proposal that will be discussed

9    at a later meeting” without affording the parents an opportunity

10   to participate.    See 34 C.F.R. §§ 300.501(b)(1) & (b)(3).2

11   Mamaroneck’s conduct was consistent with these regulations.

12        The parents argue, however, that Young’s notes delineated

13   the limits of the services Mamaroneck was willing to provide, and

14   therefore under Deal ex rel. Deal v. Hamilton County Board of

15   Education, 392 F.3d 840 (6th Cir. 2004), Mamaroneck denied them

16   meaningful participation in the IEP process by improperly

17   predetermining S.P.’s educational program.      Though not bound by

18   Deal, we find it distinguishable.      In Deal, the school district

19   had consistently rejected parent requests for intensive ABA and

20   told the parents that “the powers that be” were not implementing

21   such programs.    Id. at 855-56.    Because the school district did



     2
       At the time of the relevant events in this case, these
     provisions were found in 34 C.F.R. §§ 300.501(a)(2)(i) & (b)(2).
                                     13
1    not have an open mind as to whether intensive ABA programs might

2    be appropriate in some cases, the court found that the parents

3    were denied meaningful participation in the IEP process.    Id. at

4    857-58.

5         S.P.’s parents have failed to show that Mamaroneck did not

6    have an open mind as to the content of S.P.’s IEP.   Both Young

7    and the Committee chairperson testified that there was no

8    premeeting agreement to adopt Young’s recommendations.   There is

9    also evidence that the parents meaningfully participated in the

10   July meeting, for example the Committee’s adoption in the IEP of

11   the parents’ recommendations that Mamaroneck staff observe S.P.

12   over the summer and meet with his home providers, and that

13   Mamaroneck staff receive training on how to educate S.P.    We find

14   that the parents meaningfully participated in the development of

15   S.P.’s IEP, and Mamaroneck’s premeeting consideration of programs

16   for S.P. did not violate the procedural requirements of the IDEA.

17        Second, the timing of placement recommendations did not

18   violate the procedural requirements of the IDEA.   The record is

19   unclear as to the extent goals and objectives were discussed at

20   the June meeting.   However, witnesses agreed that there was

21   discussion of speech and language goals as well as placement

22   recommendations.    Moreover, S.P.’s programs were later modified

23   in response to the McCarton report and the parents’ concerns

                                      14
1    about transition.   Thus, the parents have failed to show that

2    placements and programs were finalized before goals and

3    objectives.

4    II.   Substantive Adequacy

5          “[A] school district fulfills its substantive obligations

6    under the IDEA if it provides an IEP that is likely to produce

7    progress, not regression, and if the IEP affords the student with

8    an opportunity greater than mere trivial advancement.”    Cerra,

9    427 F.3d at 195 (internal quotation marks omitted).   School

10   districts are not required to “furnish[] every special service

11   necessary to maximize each handicapped child’s potential.”

12   Rowley, 458 U.S. at 199.

13         The district court found S.P.’s 2004-2005 IEP substantively

14   inadequate because S.P. had previously received at-home ABA but

15   the IEP provided none, and thus the IEP failed to appropriately

16   account for S.P.’s transition into the kindergarten classroom.

17   We conclude that in finding the IEP substantively inadequate, the

18   district court failed to defer appropriately to the decisions of

19   the administrative experts on a difficult question of educational

20   policy: how best to transition an autistic child from a primarily

21   home-based educational program to a school-based program.    See

22   Gagliardo, 489 F.3d at 112-13.

23         As the SRO and IHO found, the IEP included numerous supports

                                      15
1    and services to assist S.P. with his transition.      It included 10

2    hours of in-school ABA.   The IEP specified that Young would

3    observe S.P. over the summer and communicate with his home

4    providers in order to develop an appropriate in-school program.

5    There was to be a team meeting the first week of school and

6    continuing team meetings during the school year, including

7    meetings with the home providers.      Though S.P. did engage in

8    biting and scripting at the beginning of the school year,

9    Mamaroneck adopted the parents’ recommendation to institute a

10   system for decreasing the scripting.      The system was effective,

11   and S.P.’s biting ended in October.      The SRO found that the

12   biting and scripting did not impede learning.      We find the

13   administrative decisions to be “reasoned and supported by the

14   record,” and therefore defer to the findings of the SRO and IHO

15   that the IEP appropriately provided for S.P.’s transition.        See

16   Gagliardo, 489 F.3d at 1132-13.

17        Because we find that S.P.’s 2004-2005 IEP was neither

18   procedurally flawed nor substantively deficient, we need not

19   reach the issues whether the additional services provided by the

20   parents were appropriate, see Cerra, 427 F.3d at 192, or whether

21   equitable considerations affect relief, see Frank G., 459 F.3d at

22   363-64.

23        We have reviewed the parents’ other challenges to the IEP

                                       16
1   and find them to be without merit.

2                              CONCLUSION

3        For the foregoing reasons, we REVERSE the judgment and

4   REMAND to the district court with instructions to enter judgment

5   for Mamaroneck.




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