15-1296-cv
J.C. v. New York City Department of Education

                              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
16th day of March, two thousand sixteen.

Present:         ROSEMARY S. POOLER,
                 RICHARD C. WESLEY,
                            Circuit Judges.
                 RICHARD K. EATON,*
                            Judge.

_____________________________________________________

J.C., individually and on behalf of C.C., J.F., individually and on
behalf of C.C.,

                                  Plaintiffs-Appellants,

                         v.                                                   15-1296-cv

NEW YORK CITY DEPARTMENT OF EDUCATION,

                        Defendant-Appellee.
_____________________________________________________

Appearing for Appellant:          Tracey Spencer Walsh, New York, NY.

Appearing for Appellee:           Jonathan A. Popolow, of counsel (Richard Dearing, of counsel, on
                                  the brief), for Zachary W. Carter, Corporation Counsel of the City
                                  of New York, New York, NY.
*
 The Honorable Richard K. Eaton, of the United States Court of International Trade, sitting by
designation.
      Appeal from the United States District Court for the Southern District of New York
(Gardephe, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Plaintiffs-appellants J.C. and J.F. appeal from the March 31, 2015 opinion and order of
the district court for the Southern District of New York (Gardephe, J.), granting defendant-
appellee New York City Department of Education’s motion for summary judgment and denying
plaintiffs-appellants’ motion for summary judgment on plaintiffs’ suit seeking, pursuant to the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., private school
tuition reimbursement for the 2011-2012 school year for their child, C.C. We assume the parties’
familiarity with the underlying facts, procedural history, and specification of issues for review.

        Plaintiffs first argue that we should defer to the conclusions of the Impartial Hearing
Officer (“IHO”) instead of the State Review Officer (“SRO”) because the SRO’s decision was
not careful or thorough. But where, as here, “the IHO and SRO disagree, we defer to the
reasoned conclusions of the SRO as the final state administrative determination.” C.F. ex rel.
R.F. v. N.Y.C. Dep’t of Educ., 746 F.3d 68, 77 (2d Cir. 2014) (internal quotation marks omitted).
“[W]here the SRO’s determinations are insufficiently reasoned to merit deference, the courts
should defer to the IHO’s analysis,” id., but that is simply not the case here. We therefore defer
to the SRO’s analysis on issues it reached.

        We next turn to the merits of plaintiffs’ claim for reimbursement. When parents
unilaterally enroll their child in a private school, we apply the three-part Burlington-Carter test
to determine whether they should be reimbursed. Under the test, we look at “(1) whether the
school district’s proposed plan will provide the child with a free appropriate public education
[(“FAPE”)]; (2) whether the parents’ private placement is appropriate to the child’s needs; and
(3) a consideration of the equities.” Id. at 73.

         We conduct a two-part inquiry under the first prong of the Burlington-Carter test. “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. v. N.Y.C. Dep’t
of Educ., 694 F.3d 167, 190 (2d Cir. 2012) (quoting Cerra v. Pawling Cent. Sch. Dist., 427 F.3d
186, 192 (2d Cir. 2005)). “Courts then examine whether the [Individualized Education Plan
(“IEP”)] was substantively adequate, namely, whether it was reasonably calculated to enable the
child to receive educational benefits.” Id. (alteration and internal quotation marks omitted). If an
IEP is substantively inadequate, parents are “automatically entitle[d] . . . to reimbursement.” Id.
“Procedural violations, however, only [entitle a parent to reimbursement] 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. (second
alteration in original) (quoting 20 U.S.C. § 1415(f)(3)(E)(ii)). “Multiple procedural violations
may cumulatively result in the denial of a FAPE even if the violations considered individually do
not.” Id.



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        We first address the procedural violations of the IDEA. First, it is undisputed that the IEP
failed to provide for parent training and counseling, and that this constituted a procedural
violation of the IDEA and New York state law. See C.F., 746 F.3d at 81. But this is a “less
serious” procedural violation, and the “failure to provide counseling ordinarily does not result in
a FAPE denial or warrant tuition reimbursement.” M.W. ex rel. S.W. v. N.Y.C. Dep’t of Educ.,
725 F.3d 131, 141-42 (2d Cir. 2013) (internal quotation marks omitted). We defer to the SRO’s
soundly reasoned conclusion that this omission, on its own, did not result in a FAPE denial.

         We next address the Local Committee on Special Education’s (“CSE”) failure to conduct
a functional behavioral assessment (“FBA”) or develop a behavioral intervention plan (“BIP”).
“New York regulations require the department to conduct an FBA for a student ‘whose behavior
impedes his or her learning or that of others.’” R.E., 694 F.3d at 190 (quoting N.Y. Comp.
Codes. R. & Regs. tit. 8 § 200.4(b)(1)(v)). “The failure to conduct an adequate FBA is a serious
procedural violation because it may prevent the CSE from obtaining necessary information about
the student’s behaviors, leading to their being addressed in the IEP inadequately or not at all.” Id.
Such a failure also “seriously impairs substantive review of the IEP because courts cannot
determine exactly what information an FBA would have yielded and whether that information
would be consistent with the student’s IEP.” Id. “The failure to conduct an FBA will not always
rise to the level of a denial of a FAPE, but when an FBA is not conducted, the court must take
particular care to ensure that the IEP adequately addresses the child’s problem behaviors.” Id.
“Failure to conduct an FBA . . . does not render an IEP legally inadequate under the IDEA so
long as the IEP adequately identifies a student’s behavioral impediments and implements
strategies to address that behavior.” M.W., 725 F.3d at 140. Further, “we have decided that
whether 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 the administrative officers.” Id. (alteration and
internal quotation marks omitted). Having considered the record evidence, we find no error in the
SRO’s conclusion that the failure to conduct an FBA or develop a BIP did not deny C.C. a
FAPE. Finally, we affirm the SRO’s conclusion that these procedural violations did not
cumulatively deny C.C. a FAPE.

        Having concluded that no procedural violation deprived C.C. of a FAPE, we turn to the
question of whether the IEP was substantively adequate. Plaintiffs argue that we should consider
evidence that the classroom C.C. would have been placed in did not contain an appropriate
grouping of students under the IDEA or New York state law. However, our precedent bars us
from considering such retrospective evidence. First, in R.E., our Court held that, “[i]n
determining the adequacy of an IEP, both parties are limited to discussing the placement and
services specified in the written plan and therefore reasonably known to the parties at the time of
the placement decision.” 694 F.3d at 187. Further, we held that “our evaluation must focus on the
written plan offered to the parents,” and “[s]peculation that the school district will not adequately
adhere to the IEP is not an appropriate basis for unilateral placement.” Id. at 195. In M.O. v. New
York City Department of Education, 793 F.3d 236 (2d Cir. 2015), our Court held that, under
R.E., parents could bring challenges based on the assigned school’s actual, and non-speculative,
inability to comply with the IEP without first enrolling their child in the deficient school. Id. at
244. But grouping evidence is not the kind of non-speculative retrospective evidence that is
permissible under M.O. The school possessed the capacity to provide an appropriate grouping for

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C.C., and plaintiffs’ challenge is best understood as “[s]peculation that the school district
[would] not [have] adequately adhere[d] to the IEP.” R.E., 694 F.3d at 195.

         Finally, plaintiffs argue that the Department of Education’s failure to adequately notify
them of the summer school relocation rendered the IEP substantively inadequate. We affirm the
district court’s holding that it did not, for substantially the same reasons as those stated in its
well-reasoned opinion.

       We have considered the remainder of plaintiffs’ arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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