10-4222-cv
M.B. ex rel. L.C., et al. v. Minisink Valley Cent. 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 THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
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 29th day of March, two thousand thirteen.

Present:            JOSEPH M. McLAUGHLIN,
                    ROSEMARY S. POOLER,
                    ROBERT D. SACK,
                               Circuit Judges.

_____________________________________________________

M.B., ON BEHALF OF HER MINOR SON, L.C.,
AND ON HER OWN BEHALF,

                              Plaintiff-Counter-Claimant-Counter-Defendant-Appellant,

                                 -v-                                           10-4222-cv

MINISINK VALLEY CENTRAL SCHOOL DISTRICT,


                              Defendant-Counter-Claimant-Appellee.


Appearing for Appellant:                 MICHAEL H. SUSSMAN, Sussman & Watkins, Goshen, NY.

Appearing for Appellee:                  MARK C. RUSHFIELD, Shaw, Perelson, May & Lambert, LLP,
                                         Poughkeepsie, NY.

       Appeal from the United States District Court for the Southern District of New York
(Gwin, 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 (hereinafter “Plaintiffs”) appeal the October 13, 2010 judgment of
the district court (Gwin, J.) denying tuition reimbursement for the 2007-2008 school year under
the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et. seq. The district
court’s decision affirmed the decision of the State Review Officer (“SRO”), which had reversed
the decision of the Impartial Hearing Officer (“IHO”). We assume the parties’ familiarity with
the underlying facts, procedural history, and specification of issues for review.

         “If a state fails in its obligation to provide a free appropriate public education to a
handicapped child, the parents may enroll the child in a private school and seek retroactive
reimbursement for the cost of the private school from the state.” Frank G. v. Bd. of Educ. of
Hyde Park, 459 F.3d 356, 363 (2d Cir. 2006). To determine whether reimbursement is
warranted, the Supreme Court has established the three-pronged Burlington/Carter test, which
first asks “(1) was the IEP [individualized education program] proposed by the school district
inappropriate; [and] (2) was the private placement appropriate to the child’s needs[;]” and then
looks to (3) “equitable considerations relating to the reasonableness of the action taken by the
parents.” Id. at 363-64 (internal quotation marks and brackets omitted); see also Florence Cnty.
Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12-13 (1993); Sch. Comm. of Burlington v.
Dep’t of Educ., 471 U.S. 359, 370 (1985). “[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). 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.

        When reviewing state education decisions under the IDEA, federal courts “must give due
weight to the state proceedings, mindful that we lack the specialized knowledge and experience
necessary to resolve questions of educational policy.” Id. at 189 (internal quotation marks and
alterations omitted). “[T]he district court’s [review of state proceedings] will hinge on the kinds
of considerations that normally determine whether any particular judgment is persuasive, for
example whether the decision being reviewed is well-reasoned, and whether it was based on
substantially greater familiarity with the evidence and the witnesses than the reviewing court.”
M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 244 (2d Cir. 2012). When the IHO and SRO
decisions conflict, the district court defers to the SRO’s decision as the “final decision of the
state authorities.” R.E., 694 F.3d at 189 (internal quotation marks omitted). “[T]he district court
should afford more deference when its review is based entirely on the same evidence as that
before the SRO than when the district court has before it additional evidence that was not
considered by the state agency.” M.H., 685 F.3d at 244. Keeping in mind this “circumscribed”
role, the district court “engage[s] in an independent review of the administrative record and
make[s] a determination based on a preponderance of the evidence.” Gagliardo v. Arlington
Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007) (internal quotation marks omitted). We
review the district court de novo. Id.

        The sole issue in this case is whether, under the second prong of Burlington/Carter,
M.B.’s placement of L.C. at the Family Foundation School (“FFS”) was appropriate. Plaintiffs
“bear the burden of establishing the appropriateness of their private placement.” R.E., 694 F.3d
at 185. The appropriateness of a placement turns on whether it “is reasonably calculated to
enable the child to receive educational benefits.” Frank G., 459 F.3d at 364 (internal quotation
marks omitted). In making this determination, courts look to the “totality of the circumstances”

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and “[n]o one factor is necessarily dispositive.” Id. A “unilateral private placement is only
appropriate if it provides education instruction specifically designed to meet the unique needs of
a handicapped child.” Gagliardo, 489 F.3d at 115 (internal quotation marks omitted).

        Here, Plaintiffs argue that the district court applied an incorrect legal standard in
assessing the appropriateness of L.C’s placement. We cannot agree. L.C. suffered from severe
emotional and behavioral problems and difficulties with organizational skills, executive
functioning, and fine motor skills. Reviewing the child’s placement in FFS, the SRO found the
school to be an inappropriate placement because, based on the hearing record, the school failed
to develop an individualized academic program; because it failed to provide specific support to
address L.C.’s difficulties with organizational skills, executive functioning, and fine motor skills;
and because its behavioral program, which involved sanctions and time-outs, was inappropriate.
These determinations are exactly the types of “[d]ecisions involving a dispute over an
appropriate educational methodology” that we have held should be afforded more deference by
reviewing courts. M.H., 685 F.3d at 244. The SRO also found that, while FFS did offer L.C.
counseling sessions, Plaintiffs failed to provide sufficient evidence to determine whether the
sessions were appropriate to meet the student’s needs. This finding is supported by the record.
The district court, in reiterating those findings, did not apply an incorrect legal standard. Rather,
it properly gave due weight to the opinion of the SRO.

        Plaintiffs also argue that the district court did not appropriately take into account L.C.’s
progress at FFS. Here, the district court had the benefit of additional evidence not considered
by the SRO, in the form of L.C.’s final report card and evidence of progress in individual, group,
and family counseling. We have held that less deference is required by the district court when it
“has before it additional evidence that was not considered by the state agency” and when
considering “determinations concerning whether there have been objective indications of
progress.” Id. However, while both the hearing record and additional evidence show that L.C.
made some academic and behavioral progress while at FFS, we have held “such progress does
not itself demonstrate that a private placement was appropriate.” Gagliardo, 489 F.3d at 115. In
light of the “totality of the circumstances,” Frank G., 459 F.3d at 364, the district court properly
found that Plaintiffs did not meet their burden of showing by the preponderance of the evidence
that FFS was an appropriate placement.

       We have considered all of Plaintiffs’ remaining arguments and find them to be without
merit. Accordingly, the judgment of the district court is AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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