16-3491-cv
D.B. v. Ithaca City Sch. Dist.


                                  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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 23rd day of May, two thousand seventeen.

PRESENT: REENA RAGGI,
                 SUSAN L. CARNEY,
                                 Circuit Judges,
                 LEWIS A. KAPLAN,
                                 District Judge.*
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D.B., individually and on behalf of L.B., a child with a
disability,
                                 Plaintiff-Appellant,

                                 v.                                       No. 16-3491-cv

ITHACA CITY SCHOOL DISTRICT,
                                 Defendant-Appellee.†
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APPEARING FOR APPELLANT:                          EDWARD E. KOPKO, Edward E. Kopko,
                                                  Lawyer, P.C., Ithaca, New York.

APPEARING FOR APPELLEE:                          KATE I. REID, General Counsel (Jonathan B.
                                                 Fellows, Bond, Schoeneck & King, PLLC,

*
 Judge Lewis A. Kaplan, of the United States District Court for the Southern District of
New York, sitting by designation.
†
    The Clerk of Court is directed to amend the caption as set forth above.

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                                           Syracuse, New York, on the brief), Ithaca City
                                           School District, Ithaca, New York.

          Appeal from a judgment of the United States District Court for the Northern

District of New York (David N. Hurd, Judge).

          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on September 14, 2016, is AFFIRMED.

          Plaintiff D.B., suing on behalf of herself and as the adoptive mother of L.B., a

now-eighteen-year-old learning-disabled child, appeals from an award of summary

judgment in favor of defendant Ithaca City School District (“School District”) on D.B.’s

claim for reimbursement of private educational expenses under the Individuals with

Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq. We review an award of

summary judgment de novo, although, in the IDEA context, we do so mindful that “the

responsibility for determining whether a challenged [Individualized Education Plan

(“IEP”)] will provide a child with [a free and appropriate public education (“FAPE”)]

rests in the first instance with administrative hearing and review officers.” M.W. ex rel.

S.W. v. N.Y.C. Dep’t of Educ., 725 F.3d 131, 138 (2d Cir. 2013) (internal quotation marks

omitted). In so doing, we assume the parties’ familiarity with the facts and record of

prior proceedings, which we reference only as necessary to explain our decision to

affirm.

          When a parent unilaterally enrolls a disabled child in a private school, we apply

the “three-pronged Burlington/Carter [t]est to determine eligibility for reimbursement,

which looks to (1) whether the school district’s proposed plan will provide the child with


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a [FAPE]; (2) whether the parents’ private placement is appropriate to the child’s needs;

and (3) a consideration of the equities.” C.F. ex rel. R.F. v. N.Y.C. Dep’t of Educ., 746

F.3d 68, 73 (2d Cir. 2014). “At the first step, courts examine whether there were

procedural violations of the IDEA, namely, whether the state has complied with the

procedures set forth in the IDEA.” R.E. ex rel. J.E. v. N.Y.C. Dep’t of Educ., 694 F.3d

167, 190 (2d Cir. 2012) (internal quotation marks omitted).         “Courts then examine

whether the IEP was substantively adequate, namely, whether it was reasonably

calculated to enable the child to receive educational benefit[s].” Id. (internal quotation

marks omitted).      “Substantive inadequacy automatically entitles the parent[] to

reimbursement,” id., but procedural violations do so only if they “impeded the child’s

right to a [FAPE],” “significantly impeded the parents’ opportunity to participate in the

decisionmaking process,” or “caused a deprivation of educational benefits,” id. (quoting

20 U.S.C. § 1415(f)(3)(E)(ii)).    “That is, parents must articulate how a procedural

violation resulted in the IEP’s substantive inadequacy or affected the decision-making

process.” M.W. ex rel. S.W. v. N.Y.C. Dep’t of Educ., 725 F.3d at 139.

1.     Procedural Adequacy

       The State Review Officer (“SRO”) here found a procedural violation insofar as

L.B. failed to receive updated testing in various areas as requested by the School

District’s Committee on Special Education (“CSE”) in August 2012. Nevertheless, the

SRO found that “the evidence in the hearing record does not provide any basis upon

which to conclude that this procedural violation rose to the level of a failure to offer the

student a FAPE for the 2012-13 school year” because the CSE had sufficient information

                                             3
to develop an IEP based on psychological evaluations of L.B. from March and August

2012 and an August 2012 report submitted by a private consultant engaged by D.B. J.A.

416. On appeal, D.B. challenges this conclusion, arguing that information before the

CSE when it developed L.B.’s 2012–13 IEP did “not address LB’s [non-verbal learning

disability (“NVLD”)] whatsoever” and reflected “general ignorance of this disability

admitted to by [School District] personnel.” Appellant’s Br. 18–19.

      We agree with the SRO that the identified testing failure did not deny L.B. a

FAPE because the CSE had access to information in the areas for which further testing

was requested and that information consistently identified the same deficiencies and

recommended similar corrective techniques, which were included in the IEP.

      First, the CSE had before it L.B.’s March 2012 psychological evaluation

identifying low perceptual reasoning and low-average math problem-solving scores,

which it concluded were “consistent with many characteristics of a[n] [NVLD].” J.A. 12.

That evaluation also observed that L.B. suffered from anxiety in new situations and when

learning new subjects and that her school performance improved “[o]nce rapport and trust

had been established.” Id. Its resulting recommendations—including “[k]eep[ing] the

environment predictable and familiar,” “break[ing] larger tasks into smaller chunks with

specific deadlines,” “allow[ing] [L.B.] to verbalize her thought/problem solving process”

and to use a word processor for written responses, id. at 13—were tailored to treat the

NVLD difficulties identified in the evaluation.

      In August 2012, at D.B.’s request, a School District psychologist conducted a new

evaluation of L.B. for the upcoming school year. That evaluation identified similar

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deficiencies in the child’s visual perceptual reasoning, low-average scores in math

problem solving, difficulty maintaining focus and attending to detail, and task-related

anxiety. It recommended, inter alia, “re-teaching of new math concepts,” “support[ing]

[L.B. by] breaking multistep problems and tasks into smaller chunks,” use of a computer

where possible, and potentially individual counseling. Id. at 25–26. D.B. faults this

August 2012 evaluation for “conclud[ing] that LB did not have an NVLD.” Appellant’s

Br. 4. While the hearing record shows that the examining psychologist was dubious of

the utility of an NVLD classification, this skepticism is of no moment because, as the

psychologist testified, “whether or not I believe that the [NVLD] exists in and of itself is

irrelevant to [L.B.] and her individual needs,” J.A. 237, and the record indicates that

those needs were appropriately identified and addressed by the August 2012 IEP.

       Finally, the CSE reviewed an August 21, 2012 report submitted by D.B.’s

psychological consultant, who concluded, inter alia, that L.B. “has a diagnosed non-

verbal learning disability,” id. at 43, which resulted in poorly developed perceptual

reasoning skills, difficulty “sustaining attention to written and/or visual material,” as well

as “depression and anxiety,” id. at 45.       The consultant recommended a “nurturing

environment that is structured, supervised, predictable, and consistent,” a “[s]mall

classroom setting with low teacher/student ratio,” “[f]requent one-on-on interactions with

teachers who give direct, sequential chunks of information, repeat instructions, . . .

frequent breaks to alleviate cognitive fatigue, shorter homework assignments, and more

time on tests” and are trained in cuing in on triggers and redirecting thinking patterns, and

use of assistive technology. Id. at 59.

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       Relying on the totality of these evaluations, the CSE concluded that “L.B.’s

education program should be provided at her home school,” rather than at the residential

private school recommended by D.B. and her consultant.1 Id. at 32. The resulting IEP

recognized a need for “additional support in the areas of writing and math,” id. at 83,

identifying L.B.’s poor perceptual reasoning and attention to detail and tendency to give

up on challenging tasks. It recommended “direct support within the classroom in order to

provide modification of materials and additional explanations and modeling” and “pre-

teaching, re-teaching and supplemental instruction provided through resource room

support.” Id. Specifically, it called for a 5:1 student-to-teacher resource room program,

daily direct consultant teacher services in math class, and weekly counseling, as well as

“[c]lear and specific presentation of information” through, inter alia, “[c]hunk[ing]

information into manageable pieces,” “opportunities to . . . ‘talk through’ assignment[s]

before completing,” and a “[f]amiliar and predictable routine.”2 Id. at 86–87. The IEP

also proposed providing L.B. access to a computer and a portable word processor.




1
  The CSE actually met twice in August 2012. It issued the IEP at its first meeting on
August 21, the same day on which D.B. submitted her private consultant’s report. The
CSE then met again on August 28 to consider the report, ultimately deciding to stand by
its original IEP.
2
 State regulations define a “resource room program” as “a special education program for
a student with a disability registered in either a special class or regular class who is in
need of specialized supplementary instruction in an individual or small group setting for a
portion of the school day.” N.Y. Comp. Codes R. & Regs., tit. 8, § 200.1(rr). Direct
consultant teacher services are “specially designed individualized or group instruction
provided by a certified special education teacher . . . , to a student with a disability to aid
such student to benefit from the student’s regular education classes.” Id. § 200.1(m)(1).

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       The record thus clearly supports the SRO’s conclusion that the March and August

2012 evaluations and the report of D.B.’s psychological consultant provided the CSE

with sufficient information—particularly in the areas of social/emotional, attention, and

academic/achievement for which updated testing was requested—to generate a 2012–13

IEP that would provide L.B. with a FAPE. In addition, and as the SRO observed,

although a further occupational therapy evaluation was not conducted to consider

potential benefits of assistive technology, the IEP addressed this need by recommending

that L.B. have access to a computer and a word processor to aid in completing written

assignments. See M.W. ex rel. S.W. v. N.Y.C. Dep’t of Educ., 725 F.3d at 140 (holding

that procedural violation “does not render an IEP legally inadequate . . . so long as the

IEP adequately identifies [deficiency that would have been subject of additional testing]

and implements strategies to address [it]”); R.E. ex rel. J.E. v. N.Y.C. Dep’t of Educ., 694

F.3d at 193 (holding that procedural violation did not deprive child of FAPE where CSE

nevertheless reviewed documentation as to child’s behaviors and IEP included specific

strategies to address behaviors).

       Finally, D.B. has failed to suggest, much less show, how updated testing might

have altered the CSE’s placement recommendation or the IEP. Because the record

supports the SRO’s conclusion that the CSE’s IEP would have provided L.B. with a

FAPE within the School District, we defer to its rejection of D.B.’s procedural challenge.

Thus, we are not required to consider the appropriateness of the parent’s preferred

residential placement.



                                             7
2.     Substantive Adequacy

       D.B. claims that the School District cannot provide L.B. with a FAPE because its

employees lack training and experience handling NVLDs.           The SRO deemed this

argument waived, but, even assuming it were not, we conclude that it is defeated by the

record.3

       In assessing substantive adequacy, we are mindful of IDEA’s mandate for

“personalized instruction with sufficient support services to permit the child to benefit

educationally from that instruction.” Board of Educ. v. Rowley, 458 U.S. 176, 203

(1982); accord Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017)

(holding that “school must offer an IEP reasonably calculated to enable a child to make

progress appropriate in light of the child’s circumstances” and that “question is whether

the IEP is reasonable, not whether the court regards it as ideal” (emphasis in original)).

IDEA does not require a school district to furnish “every special service necessary to

maximize each handicapped child’s potential.” Board of Educ. v. Rowley, 458 U.S. at

199; see also Bryant v. N.Y. State Educ. Dep’t, 692 F.3d 202, 215 (2d Cir. 2012)

(recognizing that IDEA ensures “appropriate education, not one that provides everything

that might be thought desirable by loving parents” (internal quotation marks omitted)).

We will not “substitute our own notions of sound educational policy for those of the

school authorities under review”; rather, we “must defer to the administrative decision


3
  The School District argues that D.B.’s contention is premised on information learned at
the due process hearing following her rejection of the IEP and, thus, relies on
impermissible retrospective testimony. We need not consider this argument, however,
because we reject the substantive challenge even considering the testimony in question.

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particularly where the state officer’s review has been thorough and careful.” M.W. ex rel.

S.W. v. N.Y.C. Dep’t of Educ., 725 F.3d at 138–39 (alteration and internal quotation

marks omitted).

       After an independent review of the record, we reach the same conclusion as the

district court and the SRO: L.B.’s IEP was sufficiently tailored to her needs to ensure

meaningful progress. The IEP identified L.B.’s difficulties with non-verbal learning;

math problem solving; maintaining attention, particularly to challenging new material;

and anxiety. It proposed, as the district court observed, “special education and related

services that were specifically designed to address her non-verbal deficits,” J.A. 460,

including a resource room program involving a low student-to-teacher ratio and led by

teachers trained in redirection and cuing methods, daily direct consultant teacher services

in math, and individualized counseling.

       Indeed, the IEP’s recommendations align comfortably with those proffered by

D.B.’s own consultant, who was concededly familiar with NVLDs. D.B.’s contention

that the consultant “testified that teachers who were ignorant of NVLDs are incapable of

providing adequate and appropriate instruction to address the needs of someone suffering

from that disability,” Appellant’s Br. 15, is misleading.         The consultant actually

vacillated considerably on this point, first stating that the School District’s teachers

“could certainly implement” the IEP, J.A. 269, before confusingly stating—after

concluding that L.B. had an NVLD—that “again, the special education teacher could

certainly implement what’s here, but . . . it doesn’t mean that it’s being implemented for a

child with [an NVLD],” id. at 271.

                                             9
      While the foregoing is sufficient to establish the IEP’s substantive adequacy, the

hearing record here also supports the conclusion that an NVLD is not formally

recognized as a psychiatric diagnosis by medical literature or by New York State.

Accordingly, a lack of training in that specific designation does not compel a finding that

the School District’s employees did not understand the nature of L.B.’s disability or the

extent of her needs, or that they were unable to provide the accommodations necessary to

ensure L.B. a FAPE.        Moreover, D.B. never requested that the School District

specifically train its teachers in NVLDs, which it could have done if it had deemed it

necessary to implement the IEP.

      In sum, because the record shows that L.B.’s 2012–13 IEP identified and

responded to the child’s learning disability, we cannot deem it substantively inadequate.

See M.W. ex rel. S.W. v. N.Y.C. Dep’t of Educ., 725 F.3d at 140 (“[W]hether an IEP

adequately addresses a disabled student’s behaviors and whether strategies for dealing

with those behaviors are appropriate are precisely the type of issues upon which the

IDEA requires deference to the expertise of administrative officers.”). Insofar as D.B.

argues that the School District would have been unable to carry out the IEP, that

contention is purely speculative and thus barred by precedent. See M.O. v. N.Y.C. Dep’t

of Educ., 793 F.3d 236, 243 (2d Cir. 2015) (“[C]hallenges to a school district’s proposed

placement school must be evaluated prospectively (i.e., at the time of the parents’

placement decision) and cannot be based on mere speculation.” (internal quotation marks

omitted)).



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3.    Conclusion

      We have considered D.B.’s remaining arguments and conclude that they are

without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                       FOR THE COURT:
                                       Catherine O’Hagan Wolfe, Clerk of Court




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