     13-2709
     Maxine Ward v. Board of Educ.

                          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 30th day of May, two thousand fourteen.
 5
 6       PRESENT: JON O. NEWMAN,
 7                DENNIS JACOBS,
 8                JOSÉ A. CABRANES,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       MAXINE WARD, on behalf of her minor
13       daughter, A.W.,
14                Plaintiff-Appellant,
15
16                    -v.-                                               13-2709
17
18       BOARD OF EDUCATION OF THE ENLARGED
19       CITY SCHOOL DISTRICT OF MIDDLETOWN,
20       NEW YORK,
21                 Defendants-Appellees.
22       - - - - - - - - - - - - - - - - - - - -X
23
24       FOR APPELLANT:                        Mary Jo Whateley, Of Counsel,
25                                             Sussman & Watkins, Goshen, New
26                                             York.
27


                                                  1
 1   FOR APPELLEE:              James P. Drohan and Neelanjan
 2                              Choudhury, Thomas, Drohan,
 3                              Waxman, Petigrow & Mayle, LLP,
 4                              Hopewell Junction, New York.
 5
 6        Appeal from a judgment of the United States District
 7   Court for the Southern District of New York (Ramos, J.).
 8
 9        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10   AND DECREED that the judgment of the district court be
11   AFFIRMED.
12
13        Maxine Ward, on behalf of her child A.W., appeals from
14   the June 12, 2013 judgment of the United States District
15   Court for the Southern District of New York (Ramos, J.),
16   granting summary judgment to Defendant-Appellee Board of
17   Education of the Enlarged City School District of
18   Middletown, New York (the “School District”), on Ward’s
19   claim for tuition reimbursement under the Individuals with
20   Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et
21   seq. The district court’s decision affirmed the decision of
22   the State Review Officer (“SRO”), which had reversed in part
23   the decision of the Impartial Hearing Officer (“IHO”).1
24   Ward challenges the SRO’s conclusions (affirmed by the
25   district court) that: (1) the School District’s 2009-2010
26   individualized education program (“IEP”) provided A.W. a
27   Free and Appropriate Public Education (“FAPE”); and (2) the
28   school in which Ward unilaterally placed A.W., Franklin
29   Academy (also “Franklin”), failed to provide specialized
30   instruction tailored to A.W.’s unique educational needs.2
31   We assume the parties’ familiarity with the underlying
32   facts, procedural history, and specification of issues for
33   review.


         1
              “[T]he IDEA mandates that states provide
     ‘impartial due process hearings’” under which parties may
     pursue their claims. R.E. v. N.Y.C. Dep’t of Educ., 694
     F.3d 167, 175 (2d Cir. 2012) (quoting 20 U.S.C. § 1415(f)).
     In New York, parties first bring their claims before an IHO,
     who is subject to review by the SRO. Id. “Either party may
     then bring a civil action in state or federal court to
     review the SRO’s decision.” Id.
         2
              The School District has not challenged the SRO’s
     conclusion that the School District failed to provide a FAPE
     to A.W. for the 2010-2011 school year.
                                  2
 1        We review de novo a grant of summary judgment by the
 2   district court in an IDEA case. R.E. v. N.Y.C. Dep’t of
 3   Educ., 694 F.3d 167, 184 (2d Cir. 2012). In doing so, we
 4   recognize that “the role of the federal courts in reviewing
 5   state educational decisions under the IDEA is
 6   circumscribed.” Gagliardo v. Arlington Cent. Sch. Dist.,
 7   489 F.3d 105, 112 (2d Cir. 2007) (internal quotation marks
 8   and citation omitted). “Although the district court must
 9   engage in an independent review of the administrative record
10   and make a determination based on a preponderance of the
11   evidence, . . . such review ‘is by no means an invitation to
12   the courts to substitute their own notions of sound
13   educational policy for those of the school authorities which
14   they review.’” Cerra v. Pawling Cent. Sch. Dist., 427 F.3d
15   186, 191-92 (2d Cir. 2005) (internal quotation marks and
16   citation omitted) (quoting Bd. of Educ. v. Rowley, 458 U.S.
17   176, 206 (1982)). “We must give ‘due weight’ to the state
18   proceedings, mindful that we lack ‘the specialized knowledge
19   and experience necessary to resolve . . . questions of
20   educational policy.’” R.E., 694 F.3d at 189 (quoting
21   Gagliardo, 489 F.3d at 113). We “generally defer to the
22   final decision of the state authorities, even where the
23   reviewing authority disagrees with the hearing officer,”
24   M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 241, 246 (2d
25   Cir. 2012) (internal quotation marks omitted), but, if the
26   SRO’s decision is “insufficiently reasoned to merit . . .
27   deference,” our Court may consider the IHO’s analysis, id.
28   at 246.
29
30        “If a state fails in its obligation to provide a free
31   appropriate public education to a handicapped child, the
32   parents may enroll the child in a private school and seek
33   retroactive reimbursement for the cost of the private school
34   from the state.” Frank G. v. Bd. of Educ. of Hyde Park, 459
35   F.3d 356, 363 (2d Cir. 2006). To determine whether
36   reimbursement is warranted, we must consider whether “(1) []
37   the IEP proposed by the school district [was] inappropriate;
38   [and] (2) [whether] the private placement [was] appropriate
39   to the child’s needs[;]” and, if both are answered in the
40   affirmative, (3) whether “equitable considerations” support
41   an award of reimbursement. Id. at 363 (internal quotation
42   marks omitted); see also Sch. Comm. of Burlington v. Dep’t
43   of Educ., 471 U.S. 359, 370 (1985).
44
45        Adequacy of IEP. To see if an IEP complies with the
46   IDEA, courts examine “whether there were procedural
47   violations of the IDEA,” and “whether the IEP was

                                  3
 1   substantively adequate, namely, whether it was reasonably
 2   calculated to enable the child to receive educational
 3   benefits.” R.E., 694 F.3d at 189-90 (internal quotation
 4   marks, alteration, and citations omitted). Here, Ward
 5   appears to present a procedural challenge only, arguing that
 6   the SRO erred by finding Devereux-Glenholme (“Glenholme”) to
 7   be an appropriate placement for A.W. because the School
 8   District “was bound by the 4/26/10 IEP[,]” Appellant’s Br.
 9   15, which recommended home instruction pending placement in
10   a New York State approved residential program. See also
11   M.W. v. Bd. of Educ. of the Enlarged City Sch. Dist. of
12   Middletown, No. 12-1476, 2013 U.S. Dist. LEXIS 82808, at *74
13   (S.D.N.Y. June 12, 2013) (“Plaintiff did not actually
14   challenge the substance of the SRO’s decision that Glenholme
15   remained an appropriate placement for A.W. for the portion
16   of the 2009-2010 school year that she attended
17   Franklin[.]”).
18
19        Ward’s argument is based on an insufficiently narrow
20   view of the record that fails to acknowledge the chronology
21   of the events. When the Subcommittee on Special Education
22   (“SCSE”) convened for A.W.’s Annual Review for the 2009-2010
23   school year, the Committee recommended that the Student
24   continue in her placement at Glenholme. Therefore, contrary
25   to Ward’s assertions and the IHO’s decision, the School
26   District did determine that Glenholme was an appropriate
27   placement for A.W. for the 2009-2010 school year, and there
28   is no indication that the School District changed its
29   recommendation prior to Ward’s decision to unilaterally
30   withdraw A.W. from Glenholme on March 29, 2010. As the
31   district court pointed out, that unilateral decision, which
32   Ward conveyed at the April 26, 2010 meeting, “is why the
33   [S]CSE made a recommendation of home instruction pending
34   placement in a New York State approved residential program,
35   rather than futilely re-recommending continued placement at
36   Glenholme notwithstanding the reality of the circumstances
37   with which the [S]CSE was confronted on April 26, 2010.”
38   M.W. v. Bd. of Educ. of the Enlarged City Sch. Dist. of
39   Middletown, 2013 U.S. Dist. LEXIS 82808, *73 (S.D.N.Y. June
40   12, 2013).    Accordingly, neither the SRO nor the district
41   court erred in determining that Glenholme was an appropriate
42   placement for A.W.
43
44        The SRO conducted the mandated review of the record
45   that was before the IHO and clearly explained the bases for
46   his conclusions. We therefore defer to its decision rather
47   than that of the IHO. See M.H., 685 F.3d at 246. In

                                  4
 1   finding that Glenholme was an appropriate placement for
 2   A.W., the SRO observed, inter alia, that the services
 3   provided by Glenholme were consistent with the
 4   recommendations of the private evaluator who assessed A.W.
 5   in January 2010, and that Glenholme’s specialized curriculum
 6   had enabled A.W. to achieve academic success and improve her
 7   behavior. Nor was Glenholme too restrictive for A.W.: it
 8   was designed to prepare her for further education,
 9   employment and personal independence, but was responsive to
10   the fact that A.W. was still at the beginning of the
11   self-dependent process and continued to exhibit behaviors of
12   concern. These findings are well-supported by the record.
13   The district court, in relying on those findings, did not
14   apply an incorrect legal standard. Rather, it properly gave
15   due weight to the opinion of the SRO.
16
17        Appropriateness of Franklin Academy. “Parents who seek
18   reimbursement bear the burden of demonstrating that their
19   private placement was appropriate, even if the IEP was
20   inappropriate.” Gagliardo, 489 F.3d at 112. Although “a
21   child’s progress is relevant to the court’s review[,] . . .
22   such progress does not itself demonstrate that a private
23   placement was appropriate.” Id. at 115. Rather, “[a]
24   unilateral private placement is only appropriate if it
25   provides education instruction specifically designed to meet
26   the unique needs of a handicapped child.” Id. (internal
27   quotation marks omitted, emphasis in original).
28
29        Nonetheless, Ward argues that the SRO “ignored the
30   factual findings of the IHO . . . and, instead, based his
31   decision to reverse the IHO’s [] decision primarily upon his
32   judgment of the efficacy of the Franklin program.”
33   Appellant’s Br. 19. However, Ward does not identify a
34   single factual finding of the IHO that the SRO ignored, and
35   we are aware of none. Ward also faults the SRO for failing
36   to seek additional evidence upon finding that the record
37   could not support a finding that A.W. progressed at Franklin
38   Academy. Appellant’s Br. 17 (citing 34 C.F.R. § 300.514).
39   The burden of proof on this issue, however, rested on Ward.
40   Moreover, Ward does not even suggest what other evidence the
41   SRO should have sought.
42
43        Again, the SRO conducted a thorough review of the
44   entire record that was before the IHO and clearly explained
45   the bases for his conclusion that Franklin Academy was not
46   an appropriate placement for A.W. As to A.W.’s needs in
47   math, the SRO observed that Franklin had not tried to

                                  5
 1   implement any new strategies to help her cope with her math
 2   deficiencies when prior ones failed, that A.W. performed
 3   worse in Franklin’s less demanding consumer math class than
 4   in a more challenging math class at Glenholme during the
 5   prior school year, and that Franklin moved A.W. to a lower
 6   level math class rather than provide her with special
 7   instruction. As to A.W’s behavioral deficits, the SRO
 8   observed that Franklin Academy failed to set goals for A.W.
 9   and that A.W.’s lack of emotional regulation negatively
10   affected her academic performance as well as her
11   interactions with others.
12
13        The SRO’s finding that Franklin Academy was not an
14   appropriate placement for A.W., which is well-reasoned,
15   logical, and supported by the hearing record, merits
16   deference. See M.H., 685 F.3d at 244-46. Indeed, Joule
17   Bazemore, the learning specialist at Franklin, expressly
18   conceded: “[w]e don’t do behavior plans, that’s not what we
19   do here.” Tr. 407. Having reviewed the record, we conclude
20   that the preponderance of the evidence supports the SRO’s
21   determination that Franklin Academy was not an appropriate
22   placement for A.W.
23
24        Giving appropriate deference to the SRO, we conclude
25   that the School District provided a FAPE to A.W. and that
26   Ward’s unilateral placement, Franklin Academy, was
27   inappropriate in light of A.W.’s unique needs. Accordingly,
28   Ward is not entitled to reimbursement.
29
30        We have considered all of Ward’s remaining arguments
31   and find them to be without merit. For the foregoing
32   reasons, the judgment of the district court is hereby
33   AFFIRMED.
34
35                              FOR THE COURT:
36                              CATHERINE O’HAGAN WOLFE, CLERK
37




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