     16-3640-cv
     R.C. and D.C. on behalf of N.C. v. Board of Education of the Wappingers Central 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 for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   1st day of December, two thousand seventeen.
 4
 5   Present:         ROSEMARY S. POOLER,
 6                    RICHARD C. WESLEY,
 7                    PETER W. HALL,
 8                               Circuit Judges.
 9
10   _____________________________________________________
11
12   R.C. AND D.C., ON BEHALF OF N.C., A STUDENT
13   WITH A DISABILITY,
14
15                                      Plaintiffs-Appellants,
16
17                             v.                                                             16-3640-cv
18
19   BOARD OF EDUCATION OF THE WAPPINGERS
20   CENTRAL SCHOOL DISTRICT,
21
22                           Defendant-Appellee.
23   _____________________________________________________
24
25   Appearing for Appellant:           Benjamin J. Hinerfeld, Philadelphia, P.A.
26
27                                      Gina M. DeCrescenzo (on the brief), White Plains, N.Y.
28
29   Appearing for Appellee:            Neelanjan Choudhury, Thomas, Drohan, Waxman, Petigrow &
30                                      Mayle, LLP, Hopewell Junction, N.Y.
31
32   Appeal from the United States District Court for the Southern District of New York (Seibel, J.).
 1        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 2   AND DECREED that the order of said District Court be and it hereby is AFFIRMED.
 3
 4            Appellants R.C. and D.C., parents proceeding on behalf of N.C., appeal from the
 5   September 29, 2016 order of the United States District Court for the Southern District of New
 6   York (Seibel, J.), granting summary judgment in favor of Appellee Board of Education of the
 7   Wappingers Central School District. At issue is whether the implementation of N.C.’s
 8   Individualized Education Plan (“IEP”) denied her a free and appropriate public education
 9   (“FAPE”) under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. 1400 et
10   seq. Specifically, N.C.’s parents argue that N.C. was denied a FAPE when her parents and the
11   district’s Committee on Special Education (“CSE”) disagreed on the appropriate out-of-district
12   private school placement for N.C.’s senior year of high school. N.C.’s parents argue they are
13   entitled to reimbursement for the unilateral private school placement. The Impartial Hearing
14   Officer (“IHO”) agreed with N.C.’s parents, but the State Review Officer (“SRO”) disagreed and
15   reversed the decision of the IHO. The parents appealed to the district court, which affirmed the
16   SRO and granted summary judgment for the school district. We assume the parties’ familiarity
17   with the remaining underlying facts, procedural history, and specification of issues for review.
18
19            Though this Court typically engages in a de novo review of decisions regarding summary
20   judgment, the standard of review is modified in the context of administrative agency decisions
21   under IDEA. Instead, the reviewing court is tasked with an analysis that this Court has termed a
22   “circumscribed de novo review . . . because the ‘responsibility for determining whether a
23   challenged IEP will provide a child with a FAPE rests in the first instance with administrative
24   hearing and review officers.’” A.M. v. New York City Dep’t of Educ., 845 F.3d 523, 534 (2d Cir.
25   2017) (quoting M.W. ex rel. S.W. v. New York City Dep’t of Educ., 725 F.3d 131, 138 (2d Cir.
26   2013)) (brackets omitted). When the IHO and SRO disagree, a reviewing court generally should
27   “defer to the final decision of the state authorities, that is, the SRO’s decision. In the ordinary
28   case, it is not for the federal court to choose between the views of conflicting experts on such
29   questions.” Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir.
30   2014) (internal citation and punctuation omitted). We turn to the IHO decision only if the SRO
31   decision is “unpersuasive even after appropriate deference is paid.” A.M., 845 F.3d at 534
32   (quoting M.H., 685 F.3d at 246)..
33
34           In the case of a unilateral parental placement in a private school, the parents’ entitlement
35   to reimbursement is assessed under “the three-step Burlington/Carter test: (1) the DOE must
36   establish that the student’s IEP actually provided a FAPE; should the DOE fail to meet that
37   burden, the parents are entitled to reimbursement if (2) they establish that their unilateral
38   placement was appropriate and (3) the equities favor them.” A.M., 845 F.3d at 534 (quoting
39   M.W., 725 F.3d at 135) (internal quotation marks omitted). Under the “circumscribed de novo
40   review” of IDEA claims, id., this Court is thus tasked with “independently verify[ing]” the
41   determination of the SRO regarding the sufficiency of the proposed IEP and the unilateral
42   placement. Id.
43
44            The SRO correctly noted that the parties agreed that N.C. needed to attend a therapeutic
45   private placement and that the crux of the disagreement between N.C.’s parents and the school
46   district was whether the school district’s recommended private school placement was adequate to



                                                       2
 1   provide a FAPE for N.C. The IHO and SRO disagreed on each of the first two prongs of the
 2   Burlington/Carter three-step analysis (the SRO did not reach prong three because he found for
 3   the school district on prongs one and two). Accordingly, we must assess whether the SRO
 4   decision was “sufficiently reasoned and supported by the record to merit deference.” Hardison,
 5   773 F.3d at 386.
 6
 7           We agree with the district court that “the SRO’s decision is supported by a preponderance
 8   of the evidence and deserves deference.” R.C. and N.C., on behalf of N.C., a student with a
 9   disability v. Board of Education of the Wappingers Central School District, No. 15-cv-5848,
10   2016 WL 5477747, at *11 (S.D.N.Y. Sept. 29, 2016). The SRO’s decision on the first prong of
11   the Burlington/Carter test rested on testimony from N.C.’s private psychiatrist, the director of
12   the recommended private placement, review of N.C.’s IEP’s, the diagnostic report from a
13   separate private psychiatrist retained by N.C.’s parents, and testimony from the CSE chairperson.
14   The SRO observed that the recommended private school placement offered small classes and
15   trained staff in a therapeutic setting. The SRO also addressed the fact that the school district’s
16   recommended placement was a day program, while the parents’ unilateral placement was a
17   residential program. The SRO found that the recommended placement struck an appropriate
18   balance between N.C.’s therapeutic needs and the statutory directive requiring CSE’s to offer a
19   placement in the “least restrictive environment.”
20
21           We find the SRO’s decision to be thorough and well-reasoned. The SRO relied on a
22   holistic assessment of the record and provided coherent reasoning for his view that the
23   recommended placement would have been appropriate. Though we need not look at the IHO’s
24   decision since the SRO’s analysis was persuasive, A.M., 845 F.3d at 534, we also note that the
25   IHO’s analysis was markedly less persuasive than that of the SRO, insofar as it relied on fewer
26   sources of evidence and did not engage in a holistic assessment of the entire record, as opposed
27   to relying heavily on the testimony and impressions of N.C.’s parents. Most significantly, the
28   IHO did not thoroughly address the attributes of the private placement, apart from his discussion
29   regarding aesthetic concerns. The SRO’s discussion of the small student population and the
30   therapeutic staff at the recommended placement addressed substantive areas that were
31   unaddressed by the IHO. Accordingly, this Court will defer to the well-reasoned opinion of the
32   SRO that is supported by a preponderance of the evidence.
33
34          Because we defer to the SRO’s decision on prong one of the Burlington/Carter test, we
35   do not need to address the remaining two prongs.
36
37           We have considered the remainder of N.C.’s parents’ arguments and find them to be
38   without merit. Accordingly, the order of the district court hereby is AFFIRMED. Each side to
39   bear its own costs.
40
41                                                       FOR THE COURT:
42                                                       Catherine O’Hagan Wolfe, Clerk
43




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