     07-3694-cv
     A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist.

1                        UNITED STATES COURT OF APPEALS

2                               FOR THE SECOND CIRCUIT

3                                      --------

4                                 August Term, 2008

 5   (Argued: December 3, 2008                     Decided: January 16, 2009)
 6
 7                         Docket No. 07-3694-cv
 8   -----------------------------------------------------------X
 9   A.C. and M.C., on behalf of M.C.,
10
11                     Plaintiffs-Appellees,
12
13                     - v. -
14
15   BOARD OF EDUCATION OF THE CHAPPAQUA CENTRAL 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.

25         REVERSED and REMANDED.

26                                       GARY S. MAYERSON, Mayerson &
27                                       Associates, New York, NY, for
28                                       Plaintiffs-Appellees.
29
30                                       MARK C. RUSHFIELD, Shaw, Perelson,
31                                       May & Lambert, LLP, for Defendant-
32                                       Appellant.
33


     *
       The Clerk of the Court is directed to amend the official
     caption as set forth above.
1    McLAUGHLIN, Circuit Judge:

2         The Board of Education of the Chappaqua Central School

3    District (“Chappaqua”) appeals from a grant of summary judgment

4    to Plaintiffs A.C. and M.C. by the United States District Court

5    for the Southern District of New York (Brieant, J.).    A.C. and

6    M.C. sued under the Individuals with Disabilities Education Act

7    (the “IDEA”), 20 U.S.C. §§ 1400 et seq., seeking reimbursement

8    for their learning-disabled child’s private-school tuition.

9         Dismissing Chappaqua’s proposed plan for special-education

10   services for M.C.’s fifth-grade year, the parents declined to

11   send their son M.C. to a public middle school in 2004-2005.    They

12   instead enrolled M.C. in the private Eagle Hill School and

13   requested an impartial due process hearing under the IDEA to

14   obtain tuition reimbursement from Chappaqua.    See 20 U.S.C. §

15   1415(f).   Although an Impartial Hearing Officer (“IHO”) granted

16   their claim, a State Review Officer (“SRO”) found that M.C.’s

17   parents were not entitled to reimbursement.    The parents then

18   pursued their claim in the United States District Court for the

19   Southern District of New York.   The district court agreed with

20   the parents and held that Chappaqua had violated both the

21   procedural and substantive requirements of the IDEA.

22   Accordingly, it granted summary judgment to the parents and




                                      2
1    awarded them tuition reimbursement, as well as attorneys’ fees

2    and costs.

3         We reverse.

4                                 BACKGROUND

5         M.C. attended pre-school through fourth grade in Chappaqua

6    public schools.    During this period, he was diagnosed with

7    multiple disabilities, including Pervasive Developmental Disorder

8    and Autism.   As a disabled child, M.C. was entitled under the

9    IDEA to a “free appropriate public education” administered by

10   Chappaqua according to an “Individualized Education Program”

11   (“IEP”).   See 20 U.S.C. §§ 1412(a)(1)(A) & 1414(d).

12        During the 2003-2004 school year, M.C. attended a “co-

13   taught” fourth-grade class at Roaring Brook Elementary School.

14   In this class, M.C. was taught alongside non-disabled students,

15   with support provided by a special-education teacher for part of

16   the day and by a program assistant for the rest of the day.

17   Because M.C. had difficulty focusing, Chappaqua also provided him

18   with a personal aide, who would sit near him and keep his

19   attention on his work through the use of prompts and cues.

20   Occasionally the aide would bring M.C. to the school psychologist

21   when he engaged in out-of-context “tangential” or “fantasy”

22   speech, which involved the repetition of lines from television

23   programs or incoherent storytelling.      Chappaqua also provided

                                       3
1    M.C. with additional math and reading instruction, occupational

2    and speech therapy, and summer programs.

3         Between March and July 2004, Chappaqua’s Committee on

4    Special Education (the “Committee”) met several times to discuss

5    M.C.’s progress and formulate an IEP for M.C.’s fifth-grade year

6    in 2004-2005.   M.C.’s parents requested that Chappaqua consider

7    placing M.C. in the Eagle Hill School, a private school for

8    disabled children.   The Committee declined to do so, and produced

9    an IEP providing for co-taught classes at a public middle school.

10   The IEP also provided for meetings with M.C.’s parents every four

11   to six weeks where M.C.’s progress, including the level of

12   prompting required, was to be discussed.   Other programs included

13   additional academic instruction; occupational and speech therapy;

14   psychiatric and psychological services; and summer programs.    The

15   IEP noted that M.C. required prompting to maintain focus, but

16   stressed the importance of developing M.C.’s independence in

17   applying reading and math skills and following classroom

18   routines.   Though M.C. would only use a private bathroom at

19   school, he no longer required prompting and an escort as had

20   previously been necessary.   The IEP noted M.C.’s tangential

21   speech, and that his “[b]ehavior seriously interferes with

22   instruction due to frequent tuning out and inattention.    An

23   additional adult such as a program assistant is needed.”

                                      4
1    Although not explicitly stated in the IEP, a personal aide would

2    again have been provided.

3         In August 2004, M.C.’s parents informed the Committee that

4    they did not accept the 2004-2005 IEP and would enroll M.C. at

5    Eagle Hill.   They requested an administrative hearing to obtain

6    reimbursement from Chappaqua for the cost of Eagle Hill.   They

7    contended that Chappaqua failed to offer a free appropriate

8    public education by, among other things, not providing for a

9    functional behavioral assessment (“FBA”) of M.C.   An FBA is “the

10   process of determining why the student engages in behaviors that

11   impede learning and how the student’s behavior relates to the

12   environment.”   8 N.Y.C.R.R. § 200.1(r).

13        Between March and July of 2005, an IHO conducted an

14   administrative hearing.   The evidence at the hearing included

15   witness testimony and reports concerning evaluations of M.C.     A

16   neuropsychologist retained by the parents reported in January

17   2004 that M.C. would continue to require an aide if he were to

18   attend a public middle school.   Reports by Chappaqua staff in

19   Spring 2004 stressed the need for prompting to maintain M.C.’s

20   focus.   Both M.C.’s speech pathologist and occupational therapist

21   agreed that M.C. had made progress.   A June 2004 progress report

22   indicated that M.C. had mastered 37 of 41 objectives set forth in

23   his 2003-2004 IEP, including the goal of independently following

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1    classroom routines.    An observation report indicated that M.C.

2    “required 1:1 support for all observed activities.”

3         Chappaqua’s Director of Special Education and the school

4    psychologist testified that the personal aide and prompting had

5    successfully addressed M.C.’s inattentive behavior.

6    Psychological and psychiatric services were recommended to assess

7    M.C.’s tangential and fantasy speech.    The psychologist testified

8    that incidents of this speech requiring his involvement decreased

9    over the course of the 2003-2004 school year, and that M.C. had

10   “improved tremendously in terms of his ability just to be part of

11   the social environment.”    The Director testified that M.C. had

12   learned to recognize and alleviate distractions on his own by

13   asking his classmates to stop making noise.    Both the Director of

14   Special Education and the school psychologist testified that an

15   FBA was unnecessary.

16        M.C.’s speech pathologist testified that M.C.’s tangential

17   speech was “minimal,” and when it occurred she was able to

18   successfully refocus M.C. to communicate meaningfully.    M.C.’s

19   special-education teacher testified that she was able to

20   effectively educate M.C. with prompting and cuing, and identified

21   areas where prompting was decreased when it was no longer

22   necessary.   M.C.’s general-education teacher testified that M.C.




                                       6
1    had progressed in the curriculum and in social interactions

2    during the 2003-2004 school year.

3         District-wide special education teacher Kathy Rowland

4    testified that the school psychologist and M.C.’s general-

5    education teacher nodded their heads in agreement when M.C.’s

6    mother stated at a March 2004 Committee meeting that she thought

7    M.C. had not made progress at home.    When asked whether an FBA is

8    warranted for a student whose behavior seriously interferes with

9    instruction, Rowland initially responded that “there [are] many

10   factors,” but when the question was asked again, stated “I can’t

11   say no, so I would have to say yes.”    However, she also testified

12   that she did not believe an FBA was required for M.C.

13        After the hearing, the IHO ruled in favor of M.C.’s parents,

14   finding that Chappaqua erred in failing to conduct an FBA, and

15   that the personal aide served as a “crutch or palliative measure”

16   that hindered the development of M.C.’s independence.    The IHO

17   further found that Eagle Hill was an appropriate placement, and

18   ordered Chappaqua to reimburse the parents for the cost of Eagle

19   Hill in 2004-2005.

20        Chappaqua appealed to an SRO.    The SRO reversed, finding

21   that Chappaqua adequately assessed M.C.’s behavior and produced

22   an IEP that was reasonably calculated to enable M.C. to receive

23   educational benefits in the least restrictive environment.    Thus,

                                     7
1    the “decision not to conduct an FBA did not rise to the level of

2    denying the student a [free appropriate public education].”    The

3    SRO also noted ways in which the 2004-2005 IEP addressed M.C.’s

4    need to develop independence.

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

6    granted them summary judgment on the administrative record.    The

7    district court found that: (1) Chappaqua’s failure to conduct an

8    FBA was a procedural violation of the IDEA that denied M.C. a

9    free appropriate public education; (2) the provision of a

10   personal aide and a private bathroom to M.C. made the IEP

11   substantively inappropriate because it promoted “learned

12   helplessness” and not independence; and (3) Eagle Hill was an

13   appropriate placement for M.C.    The district court awarded

14   tuition reimbursement and attorneys’ fees and costs to M.C.’s

15   parents.

16        Chappaqua now appeals.

17                                 DISCUSSION

18        We review de novo the district court’s grant of summary

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

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

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

22   it is a “pragmatic procedural mechanism” for reviewing

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

                                       8
1    Dep’t of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005) (internal

2    quotation marks omitted).

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

4    educational decisions under the IDEA is circumscribed.”

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

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

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

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

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

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

11   experience necessary to resolve persistent and difficult

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

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

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

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

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

17   458 U.S. at 206.

18        The deference paid to administrative proceedings is

19   particularly warranted where, as here, the district court’s

20   decision was based solely on the administrative record.    Frank G.

21   v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 367 (2d Cir. 2006),

22   cert. denied, 128 S.Ct. 436 (2007).   If the SRO’s decision

23   conflicts with the earlier decision of the IHO, the IHO’s

                                     9
1    decision “may be afforded diminished weight.”      Gagliardo, 489

2    F.3d at 113 n.2.    We “defer to the final decision of the state

3    authorities,” even where “the reviewing authority disagrees with

4    the hearing officer.”    Karl ex rel. Karl v. Bd. of Educ. of

5    Geneseo Cent. Sch. Dist., 736 F.2d 873, 877 (1984).

6           To receive federal funding under the IDEA, states are

7    required to provide disabled children with a “free appropriate

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

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

10   “may, at their own financial risk, enroll the child in a private

11   school and seek retroactive reimbursement for the cost of the

12   private school from the state.”    Gagliardo, 489 F.3d at 111.

13          To determine whether parents are entitled to tuition

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

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

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

17   consider whether the proposed IEP is substantively appropriate in

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

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

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

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

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

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

                                       10
1    reasonableness of the action taken by the parents] are

2    relevant.’”    Frank G., 459 F.3d at 363-64 (alteration in

3    original) (quoting Sch. Comm. of Burlington v. Dep’t of Educ. of

4    Massachusetts, 471 U.S. 359, 374 (1985)).    As the party

5    commencing the administrative review, the parents bear the burden

6    of persuasion as to the inappropriateness of Chappaqua’s IEP and

7    the appropriateness of the private placement.    Gagliardo, 489

8    F.3d at 112.

9    I.   Procedural Compliance

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

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

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

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

14   Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d

15   Cir. 1998) (quoting Rowley, 458 U.S. at 206).    “[H]owever, it

16   does not follow that every procedural error in the development of

17   an IEP renders that IEP legally inadequate under the IDEA.”    Grim

18   v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003).

19        Here, the district court found that the failure to conduct

20   an FBA in accordance with a N.Y. State regulation was a

21   procedural violation of the IDEA that deprived M.C. of a free

22   appropriate public education.    We disagree.   We conclude that the




                                      11
1    failure to conduct an FBA here did not render the 2004-2005 IEP

2    legally inadequate.

3         M.C.’s parents contend that Chappaqua was required by state

4    regulation to perform an FBA of M.C. but did not do so.1

5    Assuming such a violation may have occurred, the violation of

6    such a regulation does not compel the conclusion that the 2004-

7    2005 IEP was legally inadequate.   The IDEA requires that, in

8    developing an IEP for “a child whose behavior impedes the child’s

9    learning,” the school district must “consider the use of positive

10   behavioral interventions and supports, and other strategies, to

11   address that behavior.”   20 U.S.C. § 1414(d)(3)(B)(i).    As the

12   SRO found, Chappaqua satisfied this requirement, and its decision

13   not to also conduct an FBA did not rise to the level of denying

14   M.C. a free appropriate public education.

15        The 2004-2005 IEP provided for strategies to address M.C.’s

16   behavior.   The IEP noted M.C.’s attention problems and the need

17   for a personal aide and prompting to maintain M.C.’s focus during

18   class.   Chappaqua’s experts testified that these strategies had


     1
      The IDEA “incorporates some but not all state law concerning
     special education.” Bay Shore Union Free Sch. Dist. v. Kain ex
     rel. Kain, 485 F.3d 730, 734 (2d Cir. 2007). The state
     regulation relied upon by the district court requires a school
     district to conduct an FBA as part of its initial evaluation “for
     a student whose behavior impedes his or her learning or that of
     others, as necessary to ascertain the physical, mental,
     behavioral and emotional factors which contribute to the
     suspected disabilities.” 8 N.Y.C.R.R. § 200.4(b)(1)(v).
                                     12
1    proven effective.   The IEP provided for psychiatric and

2    psychological services to assess M.C.’s tangential and fantasy

3    speech, which had declined in frequency over the 2003-2004 school

4    year and which M.C.’s speech pathologist testified was “minimal.”

5    The Director of Special Education and the school psychologist

6    testified that an FBA of M.C. was unnecessary.   Although

7    district-wide special-education teacher Rowland testified that an

8    FBA is warranted for a student whose behavior seriously

9    interferes with instruction, she also testified that “there [are]

10   many factors” involved in determining whether to perform an FBA,

11   and she did not believe an FBA of M.C. was warranted.

12         The preponderance of the evidence supports the SRO’s

13   decision that the IEP adequately addressed M.C.’s behavior, and

14   the sufficiency of Chappaqua’s strategies for dealing with this

15   behavior “is precisely the type of issue upon which the IDEA

16   requires deference to the expertise of the administrative

17   officers.”   Grim, 346 F.3d at 382.   Thus, the failure to perform

18   an FBA of M.C. did not render the IEP legally inadequate.

19   II.   Substantive Adequacy

20         “[A] school district fulfills its substantive obligations

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

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

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

                                     13
1    427 F.3d at 195 (internal quotation marks omitted).    School

2    districts are not required to furnish “every special service

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

4    Rowley, 458 U.S. at 199.    Moreover, there is “a strong preference

5    for children with disabilities to be educated, to the maximum

6    extent appropriate, together with their non-disabled peers.”

7    Walczak, 142 F.3d at 122 (internal quotation marks omitted).

8         The district court found that M.C.’s 2004-2005 IEP was

9    substantively deficient because it promoted “learned

10   helplessness” and not independence.    Chappaqua argues, however,

11   that the district court failed to accord appropriate deference to

12   the SRO’s decision that the IEP adequately addressed M.C.’s

13   independence.    We agree with Chappaqua.

14        “Because administrative agencies have special expertise in

15   making judgments concerning student progress, deference is

16   particularly important when assessing an IEP’s substantive

17   adequacy.”   Cerra, 427 F.3d at 195.   Here, the SRO identified

18   ways in which Chappaqua developed M.C.’s independence, for

19   example, by decreasing the level of prompting where it was no

20   longer needed.    The IEP also provided for team meetings with the

21   parents every four to six weeks to discuss M.C.’s progress,

22   including the level of prompting required, and stressed

23   independence in the following of daily routines and the

                                      14
1    application of reading and math skills.

2         M.C. also made progress toward independence in co-taught

3    classes during the 2003-2004 year.   The June 2004 progress report

4    indicated that he had mastered the goal of independently

5    following classroom routines.   The Director of Special Education

6    testified that M.C. had learned to recognize and alleviate

7    distractions on his own by asking his classmates to stop making

8    noise.   And M.C. no longer needed prompting and an escort to use

9    the bathroom.   Although there was testimony that the school

10   psychologist and M.C.’s general-education teacher nodded their

11   heads in agreement when M.C.’s mother expressed concern in March

12   2004 that he was not making progress, it is by no means clear

13   that they agreed with her concern, given that they both testified

14   to M.C.’s progress over the 2003-2004 school year.

15        We therefore defer to the SRO’s finding that the IEP

16   adequately addressed the need for M.C. to develop independence,

17   and thus was not substantively deficient under the IDEA.    See

18   Karl, 736 F.2d at 877.

19        Because we find that M.C.’s 2004-2005 IEP was neither

20   procedurally flawed nor substantively deficient, we need not

21   reach the issues whether the private placement at Eagle Hill was

22   appropriate, see Cerra, 427 F.3d at 192, or whether equitable

23   considerations affect relief, see Frank G., 459 F.3d at 363-64.

                                     15
1                              CONCLUSION

2        For the foregoing reasons, we REVERSE the judgment and

3   REMAND to the district court with instructions to enter judgment

4   in Chappaqua’s favor.




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