     06-1494
     Gagliardo v. Arlington Cent. Sch. Dist.


1                         UNITED STATES COURT OF APPEALS

2                             FOR THE SECOND CIRCUIT

3

4                                 August Term 2006

5          (Argued: November 27, 2006          Decided: May 30, 2007)

6                              Docket No. 06-1494-cv

7    -----------------------------------------------------x

 8   ANTHONY GAGLIARDO and ADELE GAGLIARDO,
 9
10               Plaintiffs-Appellees,
11
12                           -- v. --
13
14   ARLINGTON CENTRAL SCHOOL DISTRICT,
15
16               Defendant-Appellant.
17
18   -----------------------------------------------------x
19
20   B e f o r e :     Jacobs, Chief Judge, Walker and Raggi, Circuit
21                     Judges.

22         Defendant-appellant Arlington Central School District

23   appeals from a judgment of the United States District Court for

24   the Southern District of New York (Colleen McMahon, Judge)

25   entered March 24, 2006, granting summary judgment in favor of

26   plaintiffs-appellees Anthony and Adele Gagliardo on their claim

27   brought pursuant to the Individuals with Disabilities Education

28   Act, 20 U.S.C. § 1400 et seq., for reimbursement of tuition

29   expenses incurred in educating their child at a private school of

30   their choosing.

31         REVERSED and REMANDED.

                                           1
 1                                  JEFFREY J. SCHIRO, Kuntz,
 2                                  Spagnuolo, Scapoli & Schiro, P.C.,
 3                                  Bedford Village, New York for
 4                                  defendant-appellant.
 5
 6                                  ROSALEE CHARPENTIER, Attorney,
 7                                  Family Advocates, Inc., Kingston,
 8                                  New York, for plaintiffs-appellees.
 9
10
11   JOHN M. WALKER, JR., Circuit Judge:

12        This is not the usual lawsuit brought under the Individuals

13   with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et

14   seq., in which the parents of a disabled child demand

15   reimbursement for the costs associated with sending their child

16   to a private school while the school district defends its

17   decision to provide the child a public school education.    In the

18   present action, plaintiffs-appellees Anthony and Adele Gagliardo

19   (the “Gagliardos” or “parents”) and defendant-appellant Arlington

20   Central School District (the “School District”) agree that the

21   Gagliardos’ child, S.G., belonged in a private school for his

22   senior year.   They differ only as to the school.

23        Upon competing motions for summary judgment, the United

24   States District Court for the Southern District of New York

25   (Colleen McMahon, Judge) granted the parents’ motion.   Gagliardo

26   v. Arlington Cent. Sch. Dist., 418 F. Supp. 2d 559, 578 (S.D.N.Y.

27   2006).   The district court held principally that the private

28   school chosen by the School District in formulating S.G.’s

29   individualized education program (“IEP”) would not afford the


                                      2
1    “free appropriate public education” required by the IDEA and that

2    the parents’ placement was appropriate; accordingly, it ordered

3    the School District to reimburse the parents for the tuition

4    expenses they incurred in sending S.G. to the private school they

5    chose.   In doing so, the district court rejected the conclusions

6    reached by an Impartial Hearing Officer (“IHO”) and a State

7    Review Officer (“SRO”) to deny reimbursement.

8         For the reasons that follow, we conclude that the district

9    court’s decision to reject the IHO’s determination regarding the

10   appropriateness of the private school chosen by the parents is

11   not supported by the record; we thus reverse the judgment of the

12   district court and remand the case with instructions to enter

13   judgment in favor of the School District.

14                          Statutory Background

15        This lawsuit is set against the backdrop of the statutory

16   scheme provided in the IDEA and applicable New York laws and

17   regulations as to which we offer this brief overview.

18        The IDEA “is the most recent Congressional enactment in ‘an

19   ambitious federal effort to promote the education of handicapped

20   children.’”   Walczak v. Florida Union Free Sch. Dist., 142 F.3d

21   119, 122 (2d Cir. 1998) (quoting Bd. of Educ. v. Rowley, 458 U.S.




                                      3
1    176, 179 (1982)).1    Under the IDEA, states receiving federal

2    funds are required to provide “all children with disabilities” a

3    “free appropriate public education.”    20 U.S.C. § 1412(a)(1)(A);

4    Rowley, 458 U.S. at 180-81.    To meet these requirements, a school

5    district’s program must provide “special education and related

6    services tailored to meet the unique needs of a particular child,

7    and be ‘reasonably calculated to enable the child to receive

8    educational benefits.’”     Walczak, 142 F.3d at 122 (quoting

9    Rowley, 458 U.S. at 207) (citation omitted).    Such services must

10   be administered according to an IEP, which school districts must

11   implement annually.     20 U.S.C. § 1414(d).

12        “To meet these obligations and to implement its own policies

13   regarding the education of disabled children, [New York] has

14   assigned responsibility for developing appropriate IEPs to local

15   Committees on Special Education (‘CSE’), the members of which are

16   appointed by school boards or the trustees of school districts.”

17   Walczak, 142 F.3d at 123 (citing N.Y. Educ. Law § 4402(1)(b)(1)

18   (McKinney Supp. 1997-98) and Heldman v. Sobol, 962 F.2d 148, 152

19   (2d Cir. 1992)).     In developing a particular child’s IEP, a CSE

20   is required to consider four factors: (1) academic achievement

21   and learning characteristics, (2) social development, (3)


     1
1         The Supreme court in Rowley interpreted the Education for
2    All Handicapped Children Act of 1975, which was subsequently
3    amended and renamed the IDEA. For consistency and ease of
4    comprehension, we refer to the statute throughout its history as
5    the IDEA.

                                        4
1    physical development, and (4) managerial or behavioral needs.

2    See N.Y. Comp. Codes R. & Regs. [hereinafter “N.Y.C.C.R.R.”] tit.

3    8, § 200.1(ww)(3)(i).

4         In formulating an appropriate IEP, the CSE must also be

5    mindful of the IDEA’s strong preference for “mainstreaming,” or

6    educating children with disabilities “[t]o the maximum extent

7    appropriate” alongside their non-disabled peers.     20 U.S.C. §

8    1412(a)(5); see Walczak, 142 F.3d at 132.     New York defines this

9    least restrictive environment as one that (1) provides the

10   special education needed by the student (2) to the maximum extent

11   appropriate with other students who do not have handicapping

12   conditions, and (3) is as proximate as possible to the student’s

13   place of residence.    N.Y.C.C.R.R. tit. 8, § 200.1(cc).

14        New York parents who disagree with their child’s IEP may

15   challenge it in an “impartial due process hearing,” 20 U.S.C. §

16   1415(f), before an IHO appointed by the local board of education,

17   see N.Y. Educ. Law § 4404(1).    The resulting decision may be

18   appealed to an SRO, see N.Y. Educ. Law § 4404(2); see also 20

19   U.S.C. § 1415(g), and the SRO’s decision in turn may be

20   challenged in either state or federal court, see 20 U.S.C. §

21   1415(i)(2)(A).

22                    Factual and Procedural Background

23        With regard to the academic year at issue, 2002 to 2003,

24   S.G. was a high school senior who was eligible for special


                                        5
1    educational services on account of his classification as a

2    student with an emotional disturbance; specifically, he suffered

3    from depression and social anxiety.    While this lawsuit involves

4    the parents’ request for tuition reimbursement for that period,

5    the relevant history of S.G.’s emotional disturbance begins

6    several years earlier.

7         S.G. first exhibited symptoms of depression in the fifth

8    grade and began seeing a therapist on a weekly basis in the sixth

9    grade school year from 1996 to 1997.    By April 1999, S.G. was

10   receiving more advanced treatment for his depression, including

11   antidepressants.   In the fall of 1999, S.G. attended Arlington

12   High School as a ninth grader and started the school year

13   performing quite well.    But after being threatened by another

14   student in October of that year, he began to experience anxiety

15   about attending school.    Feeling overwhelmed, he found himself

16   skipping classes, and as a result, his grades declined.

17        S.G. returned to Arlington High School for tenth grade, but

18   as the year passed, his anxiety mounted.    In February of 2001, he

19   refused to attend school.    Soon thereafter, his parents admitted

20   him to the Adolescent Intensive Outpatient Program at St. Francis

21   Hospital where he underwent a mental status examination and

22   problem appraisal.   The social worker at St. Francis, while

23   recognizing that the goal was to get S.G. back in school, opined

24   that he would need a structured educational setting before



                                       6
1    transitioning back.   The social worker recommended extended home

2    tutoring; the School District began providing it in early March

3    2001.

4         On March 16, 2001, the Gagliardos referred S.G. to the CSE.

5    In April 2001, they consented to an evaluation of their son and

6    completed a social history that indicated he had been teased and

7    bullied by other students, had a history of depression, and did

8    not want to attend school.   The School District’s psychologist

9    administered a set of standard intelligence tests, which revealed

10   that S.G. had an IQ in the high average range, average

11   achievement in reading and writing, and superior achievement in

12   mathematics.   Additional testing confirmed S.G.’s anxiety,

13   depression, and exclusion from social interaction.

14        In June 2001, the CSE convened for an initial examination

15   into S.G.’s situation.   After reviewing all of the evaluations,

16   the CSE classified S.G. as having an emotional disturbance.

17   Consistent with that classification, the CSE developed an IEP for

18   S.G.’s 2001 to 2002 school year, his junior year in high school.

19   It recommended that he receive resource room services one period

20   each day, individualized counseling once a month, and various

21   testing modifications.   The parents consented to the IEP.

22        S.G. returned to Arlington High School for his junior year,

23   but by September 20, 2001 he refused to attend classes.   On

24   October 16, his treating psychiatrist concluded that S.G. could



                                      7
1    not attend school due to his severe anxiety and depression.    The

2    School District thereupon arranged for home schooling.

3         In November 2001, the Gagliardos arranged for a psychiatric

4    evaluation of their son by Dr. Keith Ditkowsky, Director of

5    Clinical Services at New York University’s Child Study Center.

6    Also in that month, they withdrew their consent to S.G.’s IEP on

7    the basis that his needs had changed since the IEP had been

8    developed six months earlier.   The parents requested a CSE

9    meeting and an extension of home instruction.

10        Dr. Ditkowsky transmitted his evaluation and recommendation

11   to the Gagliardos in a letter dated December 5, 2001.    In the

12   letter, Dr. Ditkowsky recommended that:

13        In light of the continued symptoms of his anxiety
14        disorder, coupled with his history of recurrent
15        depression, it appears that [S.G.] would benefit from
16        an alternative placement. Such a setting should have a
17        smaller teacher to student ratio, and be in a more
18        supportive or therapeutic environment. Hopefully this
19        will allow [S.G.] to re-integrate into a school
20        setting. It is also important that the academic
21        curriculum be at an appropriate level given [S.G.]’s
22        clear ability.
23
24   Dr. Ditkowsky further emphasized the urgency with which S.G.

25   needed to reintegrate into a school setting and that prolonged

26   home instruction would aggravate his problems.

27        The CSE met a week later to review the December 5, 2001

28   letter from Dr. Ditkowsky.   Based on the information before it,

29   the CSE described to the parents several alternative high school

30   programs, including that of the Karafin School, a small day


                                      8
1    school in Mt. Kisco, New York.    The CSE agreed to reconvene at a

2    later date to review further information.

3         In January 2002, S.G. and his parents began visiting the

4    various alternative high school programs.      At the same time, the

5    parents sought independent advice from a private organization

6    regarding other private schools.       This organization recommended

7    Oakwood Friends School, a Quaker school in Poughkeepsie, New

8    York, that was not approved for the provision of special

9    education services by the New York State Department of Education.

10        Dr. Ditkowsky submitted his final report to the CSE on

11   February 7, 2002.   In it, Dr. Ditkowsky provided a more detailed

12   description of S.G.’s disorder:

13        [S.G. has] a history of recurrent symptoms of
14        depression and anxiety, which have interfered in his
15        ability to function well in school. The persistent
16        pattern of symptoms with occasional exacerbations is
17        consistent with a diagnosis of Dysthymia with
18        intermittent Major Depressive Episodes. . . . [H]is
19        school refusal, coupled with his numerous concerns
20        about running into peers in the school, and social
21        withdrawal is suggestive of social anxiety, most likely
22        consistent with Social Phobia.
23
24        Largely echoing his December 5, 2001 recommendations, Dr.

25   Ditkowsky stated that academically S.G. did not appear ready to

26   return to Arlington High School and that he would benefit from

27   placement into a “smaller, therapeutic or more supportive program

28   with a good academic component in order to help him again

29   function in a school setting.”     Dr. Ditkowsky explained that

30   “[t]his is especially important, as [S.G.] needs not only the


                                        9
1    credit, but also the social interaction.”

2           On February 11, 2002, the CSE reconvened, with Dr. Ditkowsky

3    participating by telephone.    In response to questions regarding

4    how much psychological support S.G. needed during the school day,

5    Dr. Ditkowsky explained that the environment he recommended would

6    include staff with expertise in anxiety disorders that would be

7    able to work with S.G. should issues associated with his

8    emotional disturbance manifest themselves in the course of the

9    school day.    At the same CSE meeting, the parents authorized the

10   release of S.G.’s file to Karafin and the other schools that had

11   been discussed at the previous CSE meeting.

12          The following month, S.G. and his parents visited Karafin

13   and met with the school’s associate director, Dr. Bart Donow.

14   According to the Gagliardos, the visit went poorly.    Shortly

15   after the visit to Karafin, the parents hired counsel to assist

16   them in their dealings with the School District.    Counsel

17   recommended that neuropsychologist Dr. Marian Rissenberg evaluate

18   S.G.

19          On April 29, 2002, the parents asked for another CSE

20   meeting.    In a letter to the School District, they represented

21   that they had visited the various schools discussed in the

22   February 2002 meeting and considered all of them inappropriate

23   for their son.    At about the same time, the parents applied for

24   S.G.’s admission to Oakwood and authorized the release of his



                                      10
1    information to that school.   The parents had not mentioned

2    Oakwood to the School District earlier and did not notify the

3    School District that they were taking this step; they did,

4    however, tell Dr. Rissenberg that they hoped their son would

5    attend Oakwood.

6         In a letter dated May 16, the parents notified the School

7    District that its “evaluations of [their] son are not correct in

8    diagnosing his disability, [and] therefore not correct in

9    educating or treating him.”   The parents also requested that Dr.

10   Rissenberg evaluate S.G., and the School District agreed.

11        The CSE met on June 7, 2002 to conduct S.G.’s annual review.

12   They reviewed the Gagliardos’ letter explaining their

13   dissatisfaction with the schools they had visited, including

14   Karafin.   The parents were asked for suggestions but provided

15   none.   The parents were also asked to consent to additional

16   academic skills testing, but they refused because the same

17   testing was to be administered by Dr. Rissenberg.

18        On July 8, 2002, Oakwood accepted S.G.   Three days later the

19   CSE met to finalize S.G.’s placement for his senior year.     At

20   this meeting, the CSE recommended that S.G. be placed at Karafin,

21   with various program modifications, testing accommodations, and

22   once a week counseling.   The CSE continued to request additional

23   academic skills testing, and the parents consented.   On July 18

24   and again on July 23, 2002, S.G.’s father wrote to the School


                                     11
1    District demanding an IEP based on the discussions at the July 11

2    meeting, which the School District furnished on July 29.

3         On August 15, 2002, the parents requested an impartial due

4    process hearing, asserting that Karafin was an inappropriate

5    setting for S.G.    He commenced attendance at Oakwood in September

6    2002.

7         In October 2002, while the due process proceedings were

8    pending, Dr. Rissenberg completed her report on S.G.’s

9    evaluation.   Her report, in substance, was consistent with that

10   of Dr. Ditkowsky.   She found evidence in S.G. of superior

11   intellectual ability, social anxiety, inflexibility, poor social

12   perception, and depressed mood.    She opined that his situation

13   was consistent with a diagnoses of Asperger’s syndrome — a mild

14   autistic spectrum disorder — in the context of very superior

15   intellectual capacity.   Dr. Rissenberg recommended an alternative

16   academic placement with small classes and an individualized

17   approach, instruction at a high level of conceptual complexity

18   with students whose intellectual capacity was similar to S.G.’s,

19   and discussion-based learning and group participation.    She also

20   recommended that S.G. be protected from bullying and ostracizing

21   by peers.   Dr. Rissenberg further recommended various supports

22   consistent with an attention deficit disorder, including extended

23   time for tests, preferential seating, help with planning and

24   organization, and individual instruction as needed.    Last, she


                                       12
1    recommended both individual and group therapy.

2          After a total of nine days of hearings, the IHO rendered a

3    final decision dated June 19, 2003.    It found that (1) the

4    proposed IEP was reasonably calculated to enable S.G. to receive

5    educational benefits and therefore appropriate; (2) the parents

6    did not meet their burden of demonstrating that Oakwood was an

7    appropriate placement; and (3) equitable considerations weighed

8    against granting the parents’ reimbursement request.

9    Accordingly, the IHO denied the parents’ request for tuition

10   reimbursement.   The SRO affirmed the IHO’s decision based on the

11   IHO’s conclusion that the IEP was appropriate to S.G.’s needs.

12   Because this conclusion was sufficient to affirm the IHO, the SRO

13   did not address findings (2) and (3).

14        The parents filed this reimbursement action pursuant to 20

15   U.S.C. § 1415(i)(2).   Both parties moved for summary judgment on

16   the amended complaint.   The district court granted the

17   Gagliardos’ motion.    Gagliardo, 418 F. Supp. 2d at 578.    The

18   district court found, based on its own review of the

19   administrative record and certain additional evidence, that the

20   proposed IEP that specified Karafin was not appropriate

21   principally because Karafin was not the least restrictive

22   environment in which to educate S.G.    See id. at 572-75.     It

23   further found that Oakwood was an appropriate placement, id. at

24   575-76, and that the parents were equitably entitled to


                                      13
1    reimbursement, id. at 576-78.   Accordingly, the district court

2    awarded the parents tuition reimbursement.    Id. at 578.   Judgment

3    was entered on March 24, 2006, and this appeal followed.

4                                DISCUSSION

5         As we have noted earlier, in order to receive federal

6    funding under the IDEA, a state must provide to all children with

7    disabilities “a free appropriate public education.”   20 U.S.C. §

8    1412(a)(1)(A); Rowley, 458 U.S. at 180-81.   If parents believe

9    that the state has failed their child in this regard, they may,

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

11   and seek retroactive reimbursement for the cost of the private

12   school from the state.   See Sch. Comm. of the Town of Burlington

13   v. Dep’t of Educ., 471 U.S. 359, 370 (1985); M.S. ex rel. S.S. v.

14   Bd. of Educ., 231 F.3d 96, 102 (2d Cir. 2000).   In determining

15   whether parents are entitled to reimbursement, the Supreme Court

16   has established a two part test: (1) was the IEP proposed by the

17   school district inappropriate; (2) was the private placement

18   appropriate to the child’s needs.    See Burlington, 471 U.S. at

19   370; Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006).

20   The party who commences an impartial hearing — in this case, the

21   parents — bears the burden of persuasion on both Burlington

22   factors.   See Schaffer v. Weast, 546 U.S. 49, 57-58 (2005).   If

23   parents meet their burden, the district court enjoys broad

24   discretion in considering equitable factors relevant to


                                     14
1    fashioning relief.     See Florence County Sch. Dist. Four v.

2    Carter, 510 U.S. 7, 16 (1993).

3         In this case, the question of whether the Gagliardos carried

4    their burden of demonstrating that the IEP proposed by the School

5    District was inappropriate is a close one.      We need not answer

6    it, however, because this case is easily disposed of under part

7    two of the Burlington test.

8         Parents who seek reimbursement bear the burden of

9    demonstrating that their private placement was appropriate, even

10   if the IEP was inappropriate.     See M.S., 231 F.3d at 104.

11   Subject to certain limited exceptions, “the same considerations

12   and criteria that apply in determining whether the [s]chool

13   [d]istrict’s placement is appropriate should be considered in

14   determining the appropriateness of the parents’ placement. . . .

15   [T]he issue turns on whether a placement — public or private — is

16   ‘reasonably calculated to enable the child to receive educational

17   benefits.’”   Frank G., 459 F.3d at 364 (quoting Rowley, 458 U.S.

18   at 207 and identifying certain exceptions).      A private placement

19   meeting this standard is one that is “likely to produce progress,

20   not regression.”     Walczak, 142 F.3d at 130 (internal quotation

21   marks omitted).    In Frank G., we explained:

22        No one factor is necessarily dispositive in determining
23        whether parents’ unilateral placement is reasonably
24        calculated to enable the child to receive educational
25        benefits. Grades, test scores, and regular advancement
26        may constitute evidence that a child is receiving
27        educational benefit, but courts assessing the propriety

                                       15
 1        of a unilateral placement consider the totality of the
 2        circumstances in determining whether that placement
 3        reasonably serves a child’s individual needs. To
 4        qualify for reimbursement under the IDEA, parents need
 5        not show that a private placement furnishes every
 6        special service necessary to maximize their child’s
 7        potential. They need only demonstrate that the
 8        placement provides educational instruction specially
 9        designed to meet the unique needs of a handicapped
10        child, supported by such services as are necessary to
11        permit the child to benefit from instruction.
12
13   459 F.3d at 364-65 (citations and internal quotation marks
14
15   omitted).

16        In conducting our de novo review of the district court’s

17   holding, we are mindful that the role of the federal courts in

18   reviewing state educational decisions under the IDEA is

19   “circumscribed.”   Muller v. Comm. on Special Educ., 145 F.3d 95,

20   101 (2d Cir. 1998); see also Cerra v. Pawling Cent. Sch. Dist.,

21   427 F.3d 186, 191 (2d Cir. 2005) (“In reviewing the

22   administrative proceedings, it is critical to recall that IDEA’s

23   statutory scheme requires substantial deference to state

24   administrative bodies on matters of educational policy.”).

25   Although the district court must engage in an independent review

26   of the administrative record and make a determination based on a

27   “preponderance of the evidence,”     Mrs. B. v. Milford Bd. of

28   Educ., 103 F.3d 1114, 1120 (2d Cir. 1997), the Supreme Court has

29   cautioned that such review “is by no means an invitation to the

30   courts to substitute their own notions of sound educational

31   policy for those of the school authorities which they review,”


                                     16
1    Rowley, 458 U.S. at 206.   To the contrary, federal courts

2    reviewing administrative decisions must give “due weight” to

3    these proceedings, mindful that the judiciary generally “lack[s]

4    the specialized knowledge and experience necessary to resolve

5    persistent and difficult questions of educational policy.”     Id.

6    at 206, 208 (internal quotation marks omitted).

7         We applied the Rowley deference standard in Walczak, in

8    which we overturned a district court’s reversal of an SRO’s

9    decision under the IDEA.   We noted that, in order for the

10   district court to conduct an “independent” review of the

11   sufficiency of an IEP under the IDEA that does not “impermissibly

12   meddl[e] in state educational methodology,” it must examine the

13   record for “objective evidence” that indicates “whether the child

14   is likely to make progress or regress under the proposed plan.”

15   Walczak, 142 F.3d at 130 (quoting Mrs. B., 103 F.3d at 1121).

16   And in Frank G., we recently noted that the district court is

17   required to employ the same objective evidence standard when

18   ascertaining the appropriateness of a parent’s private placement,

19   see 459 F.3d at 364, always being mindful, of course, that

20   deference to the administrative proceedings is particularly

21   warranted when the district court’s decision is based solely on

22   the administrative record, see id. at 367.

23        In the present case, the district court identified several

24   reasons why it believed that Oakwood was a proper placement for


                                     17
1    S.G.    Gagliardo, 418 F. Supp. 2d at 575-76.   The district court

2    pointed out that Oakwood provided S.G. small classes, with twelve

3    to fifteen students; that Oakwood was “supportive” of his

4    emotional needs because, in addition to the Quaker values of

5    tolerance and respect that it promoted, the school did not allow

6    teasing, bullying, or ostracism; that the traditional classroom

7    setting at Oakwood allowed S.G. to benefit from the sort of group

8    activities and discussions that Dr. Ditkowsky and others who

9    evaluated S.G. deemed crucial to both his academic success and

10   his development of social skills; and that S.G. achieved

11   promising grades while at Oakwood.    Id.

12          The district court reached its conclusion despite the fact

13   that the IHO, confronted with the same evidence, found that

14   Oakwood was not an appropriate placement for S.G.2    The IHO

15   explained that the testimony of the parents’ own experts showed

16   that S.G. required a therapeutic setting in order to reasonably

     2
 1        The district court afforded the IHO’s findings on Oakwood no
 2   weight, evidently because the SRO discussed only the School
 3   District’s proposed placement at Karafin. If a final state
 4   determination conflicts with an earlier decision, the earlier
 5   decision may be afforded diminished weight. See Karl v. Bd. of
 6   Educ., 736 F.2d 873, 877 (2d Cir. 1984) (holding that courts owe
 7   deference to the final agency determination where the review
 8   officer disagrees with the hearing officer); Heather S. v. State,
 9   125 F.3d 1045, 1053 (7th Cir. 1997) (holding the same and noting
10   that “the ‘due weight’ which the court must give to the hearings
11   below is . . . to the decision of the hearing officers . . .
12   [which] is an easier task where . . . the hearing officers are in
13   accord”). Here, however, the SRO did not reject the IHO’s
14   findings or analysis. To the contrary, the SRO’s decision
15   explicitly noted that the IHO’s findings were supported by the
16   record.

                                      18
1    assure that he would receive educational benefits as required by

2    Rowley.   Such a setting, the IHO noted, required a staff trained

3    in dealing with the special needs attributable to S.G. on account

4    of his emotional disorder.     See Frank G., 459 F.3d at 364   (In

5    order for the parent’s private placement to be appropriate under

6    Rowley, it must provide “educational instruction specially

7    designed to meet the unique needs of the handicapped child,

8    supported by such services as are necessary to permit the child

9    to benefit from instruction.”).    Because Oakwood lacked such a

10   therapeutic setting, the IHO found that it was an inappropriate

11   placement for S.G.

12        The district court’s grounds for disturbing the IHO’s

13   reasoned conclusion are not supported by the record.    In

14   rejecting the IHO’s conclusion, the district court emphasized

15   that, according to Dr. Ditkowsky, S.G. did not require a school

16   with a “therapeutic” setting; instead, he needed a school with an

17   environment that was either “therapeutic or supportive.”

18   Gagliardo, 418 F. Supp. 2d at 576.     Importing its own view on the

19   latter notion, the district court found that a supportive

20   environment was achieved at Oakwood through a combination of its

21   Quaker values and S.G.’s private therapy.     See id.

22        The district court’s reasoning ignores the substance of Dr.

23   Ditkowsky’s recommendations.    In the February 11, 2002 CSE

24   meeting, Dr. Ditkowsky clarified what he meant by a “supportive


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1    or therapeutic environment” when responding to a CSE member’s

2    question regarding how much psychological support S.G. needed

3    during the school day.    Dr. Ditkowsky explained that his

4    recommendation did not hinge on any clinical meaning ascribed to

5    the words therapeutic or supportive; the thrust of his

6    recommendation, rather, was that S.G. be placed in a school where

7    trained professionals could work closely with him and assist him

8    as issues associated with his disorder surfaced throughout the

9    day.    At the due process hearing, Dr. Ditkowsky reiterated these

10   comments.    He testified that S.G. needed to be placed in a school

11   that had staff trained in dealing with anxiety disorders so as to

12   “help him . . . survive through the day if he really was

13   struggling or suffering.”    The record shows, as the IJ noted,

14   that Oakwood did not have a staff of such professionals, and

15   while his private therapy may have been able to help him after

16   school, it was not available throughout the school day.

17          The district court also found that the IHO was incorrect in

18   stating that Oakwood did not have any special education services

19   because literature from the school explains that Oakwood provides

20   students in S.G.’s position with certain forms of academic

21   support.    Gagliardo, 418 F. Supp. 2d at 576.   The district court

22   further observed that teachers certified in special education are

23   not required for a parental placement to qualify as an

24   appropriate placement for tuition reimbursement.     Id. (citing


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1    Carter, 510 U.S. at 14).   The context of the IHO’s discussion of

2    this issue demonstrates, however, that he was not suggesting

3    Oakwood did not provide special education services as a general

4    matter, but instead that Oakwood did not provide the special

5    education services specifically needed by S.G. — namely, an

6    educational setting consistent with Dr. Ditkowsky’s

7    recommendation.   Oakwood’s own Upper School Head supported this

8    finding in her testimony at the due process hearing to the effect

9    that Oakwood does not provide the kind of special education

10   services that S.G.’s condition required.

11        In sum, the IHO’s finding that Oakwood was not an

12   appropriate placement for S.G. is reasoned and supported by the

13   record, including the history of S.G.’s struggle with his

14   emotional disturbance and his resulting inability to attend

15   school.   We see no reason for the district court to have

16   disturbed it.   Because tuition reimbursement is available only

17   for an appropriate private school placement, we reverse the

18   district court’s judgment ordering the School District to

19   reimburse the parents for the cost of S.G.’s tuition at Oakwood.

20        We finally add a word about the position a district court

21   finds itself in where, as here, it is called upon to review a

22   case in which parents have enrolled their disabled child in a

23   private school, believing it to be the best thing for the child,

24   and can point to their child’s record of success at the school


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1    they chose.    It is understandable that a district court would be

2    receptive to parents under these circumstances; a child’s

3    progress is relevant to the court’s review.    But such progress

4    does not itself demonstrate that a private placement was

5    appropriate.    See Berger v. Medina City Sch. Dist., 348 F.3d 513,

6    522 (6th Cir. 2003) (“[E]vidence of academic progress at a

7    private school does not itself establish that the private

8    placement offers adequate and appropriate education under the

9    IDEA.”); Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27

10   (1st Cir. 2002) (same).    Indeed, even where there is evidence of

11   success, courts should not disturb a state’s denial of IDEA

12   reimbursement where, as here, the chief benefits of the chosen

13   school are the kind of educational and environmental advantages

14   and amenities that might be preferred by parents of any child,

15   disabled or not.    A unilateral private placement is only

16   appropriate if it provides “education instruction specifically

17   designed to meet the unique needs of a handicapped child.”    Frank

18   G., 459 F.3d at 365 (quoting Rowley, 458 U.S. at 188-89)

19   (emphasis added).

20                                CONCLUSION

21        For the foregoing reasons, we REVERSE the judgment of the

22   district court and REMAND with instructions to enter judgment in

23   favor of the School District.




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