Gagliardo v. Arlington Cent. Sch. Dist. ( 2007 )

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. at19 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
19
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
20
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
21
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.
22