     17-3462-cv
     Board of Education of the Mamaroneck Union Free School District v. A.D.

                                        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 for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 12th day of October, two thousand eighteen.
 4
 5   PRESENT:            JOSÉ A. CABRANES,
 6                       ROBERT D. SACK,
 7                       BARRINGTON D. PARKER,
 8                                    Circuit Judges.
 9
10
11   BOARD OF EDUCATION OF THE MAMARONECK UNION
12   FREE SCHOOL DISTRICT,
13
14                                 Plaintiff-Appellant,
15
16                                 v.                                             17-3462-cv
17
18   A.D. AND N.D. INDIVIDUALLY AND ON BEHALF OF
19   J.D., A MINOR,
20
21                                 Defendants-Appellees.
22
23
24   FOR PLAINTIFF-APPELLANT:                                                  MARK C. RUSHFIELD, Shaw, Perelson,
25                                                                             May & Lambert, LLP, Poughkeepsie, NY.
26
27   FOR DEFENDANTS-APPELLEES:                                                 JESSE COLE CUTLER, Skyer, Castro, Foley
28                                                                             & Gersten, New York, NY.
29
30          Appeal from a judgment of the United States District Court for the Southern District of New
31   York (Thomas P. Griesa, Judge).


                                                                     1
 1        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
 2   ADJUDGED, AND DECREED that the October 10, 2017 judgment of the District Court is hereby
 3   AFFIRMED.

 4           Plaintiff-Appellant Board of Education of the Mamaroneck Union Free School District
 5   (“Plaintiff”) appealed a judgment of the District Court granting summary judgment to Defendants-
 6   Appellees A.D. and N.D., on behalf of J.D., a minor (collectively, “Defendants”).

 7                                             BACKGROUND

 8            This case was brought under the Individuals with Disabilities Education Act (“IDEA”). J.D.
 9   is a seventeen-year-old student with behavioral and emotional difficulties and with diagnoses including
10   attention deficit hyperactivity disorder. On June 24, 2014, J.D. was referred to the Committee on
11   Special Education (“CSE”), which prepared an Individualized Educational Program (“IEP”) for him.
12   This IEP recommended a resource room program but did not formally recommend counseling
13   support. While there is a reference to “counseling support” on a student information summary page
14   attached to the IEP, there were no specifications as to what such counseling would entail.

15           Defendants, J.D.’s parents, were dissatisfied with the IEP and enrolled J.D. in a residential
16   school in Idaho—Cherry Gulch. On January 5, 2015, Defendants filed a complaint requesting a
17   hearing before an Impartial Hearing Officer (“IHO”), stating “that the IEP . . . is neither appropriate
18   nor reasonably calculated to confer a benefit to [J.D.].” J.A. 268.

19           The impartial hearing was conducted between April 21, 2015 and July 8, 2015. In its opening
20   statement, Plaintiff stated that the IEP provided “meaningful educational benefit” through the
21   resource room services and “additional related services of counseling.” J.A. 175. Further, during the
22   hearing, Plaintiff elicited testimony from Dr. Cecilia Anon, the school psychologist, regarding the
23   nature of the counseling that would have been provided to J.D. J.A. 199–200. The IHO determined
24   that the IEP was adequate, and Defendants appealed to a State Review Officer (“SRO”).

25            The SRO reversed the IHO decision in part, finding the IEP inadequate and ordering the
26   Plaintiff to reimburse Defendants for the non-residential portion of the costs of Cherry Gulch. The
27   SRO reasoned that there was no formal counseling recommendation in the IEP and no
28   contemporaneous evidence to substantiate whether such a counseling recommendation was ever
29   made. J.A. 53.

30           Following the SRO decision, Plaintiff filed the instant action alleging that the SRO erred on
31   two issues: (1) whether the Plaintiff “opened the door” to a claim for lack of counseling services in
32   the IEP and (2) whether the testimony offered by Dr. Anon constituted prohibited “retrospective
33   evidence.” The parties cross-moved for summary judgment and the District Court granted the
34   Defendants’ motion, affirming the SRO’s decision in full.

35

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 1                                                  DISCUSSION

 2            The court reviews de novo a district court’s grant of summary judgment in an IDEA case. T.P.
 3   ex rel S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009).

 4                                                 “Opening the Door”

 5             If a party fails to include a claim in the due process complaint, the opposing party may “open
 6   the door” to that claim by addressing it during a hearing. M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217,
 7   250–51 (2d Cir. 2012). In this case, Plaintiff raised the issue of counseling in the due process hearings.
 8   First, Plaintiff addressed the counseling issue in its opening statement. J.A. 175 (“[T]he IEP was
 9   reasonably calculated to confer J. with meaningful educational benefit . . . that they provided additional
10   related services of counseling to support his emotional and behavioral needs . . . .” (emphasis added)). Second,
11   Plaintiff elicited testimony from its witnesses, notably Dr. Anon, regarding the types of counseling
12   support that would have been provided to J.D. See, e.g., J.A. 199 (“We discussed psychological
13   counseling but there was also much conversation about how J.[D.] was going to accept . . .
14   psychological counseling.”); J.A. 200 (“I would have worked at building more of a rapport with J.[D.]
15   . . . Perhaps what I often do with children, . . . I have them develop a level of trust and comfort,
16   perhaps invite him in with a group of—with a friend or during lunch time.”). We conclude, based on
17   these statements, that the Plaintiff “opened the door” to the counseling issue by raising it in the first
18   instance. Defendants were therefore entitled to respond.
19
20                                                Retrospective Evidence
21
22           We have adopted “the majority view that the IEP must be evaluated prospectively as of the
23   time of its drafting.” R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167, 186 (2d Cir. 2012). While there is
24   no “four corners rule prohibiting testimony that goes beyond the face of the IEP . . . testimony may
25   be received that explains or justifies the services listed in the IEP.” Id. (internal quotation marks omitted)
26   (emphasis added). By contrast, “retrospective testimony that the school district would have provided
27   additional services beyond those listed in the IEP may not be considered.” Id.
28
29              In this case, a counseling recommendation does not appear in the IEP. While Plaintiff claims
30   that this was merely a clerical error, the record is devoid of contemporaneous evidence that could
31   substantiate Plaintiff’s claim that counseling was recommended in the IEP. J.A. 53 (SRO Decision)
32   (“[T]here are no CSE meeting minutes, no prior written notice, or any other documentary or
33   testimonial evidence in the hearing record . . . indicating the exact service being offered to the student
34   . . . .”). Thus, testimony from Dr. Anon discussing what counseling services would have been provided
35   to J.D. falls squarely within the definition of “retrospective evidence” and cannot be relied upon in
36   evaluating the IEP.
37
38
39

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1   For the foregoing reasons, we AFFIRM the judgment of the District Court.

2
3                                              FOR THE COURT:
4                                              Catherine O’Hagan Wolfe, Clerk




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