Navarro Carrillo v. N.Y.C. Dep't of Educ.

21-2639
Navarro Carrillo v. N.Y.C. Dep’t of Educ.
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 TO 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 1st
day of May, two thousand twenty-three.
PRESENT:
DENNIS JACOBS,
MYRNA PÉREZ,
SARAH A. L. MERRIAM,
Circuit Judges.
__________________________________________
MARIA NAVARRO CARRILLO, JOSE GARZON, *
Plaintiffs-Appellants,
v. No. 21-2639
NEW YORK CITY DEPARTMENT OF EDUCATION,
CHANCELLOR DAVID C. BANKS,
Defendants-Appellees,
NEW YORK STATE EDUCATION DEPARTMENT,
* The Clerk of Court is respectfully directed to amend the caption
of the case in two ways: first, to reflect the correct spelling of
“Carrillo”; and second, to substitute David C. Banks for Richard
Carranza as Chancellor of the New York City Department of Education
pursuant to Federal Rule of Appellate Procedure 43(c)(2).
Defendant.
__________________________________________
For Plaintiffs-Appellants: RORY J. BELLANTONI, Brain Injury Rights
Group, Ltd., New York, NY.
For Defendants-Appellees: AMY MCCAMPHILL, Assistant Corporation
Counsel (Richard Dearing, Deborah
A. Brenner, of counsel, on the
brief), for Hon. Sylvia O. Hinds-
Radix, Corporation Counsel of the
City of New York, New York, NY.
Appeal from a judgment of the United States District Court
for the Southern District of New York (McMahon, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court is AFFIRMED.
Plaintiffs-appellants, individually and as the parents of
minor child M.G., brought this action under the Individuals with
Disabilities Education Act (the “IDEA”), 20 U.S.C. §1400 et seq.,
alleging that defendants-appellees, the New York City Department
of Education and the Chancellor of the New York City Department of
Education in his official capacity (referred to collectively as
the “DOE”), failed to provide M.G. with a free appropriate public
education (“FAPE”) for the 2018-2019 school year, as required by
the IDEA.
M.G. is a non-verbal and non-ambulatory student with
significant disabilities. On March 19, 2018, a Committee on Special
2
Education (“CSE”) was convened of educators, service providers,
DOE staff, and the appellants, to develop M.G.’s 2018-2019
Individualized Education Program (“IEP”). The IEP classified
M.G.’s disability as “multiple disabilities,” assigned special
education programs and services, and recommended that M.G. be
placed in a 12:1:4 classroom, 1 which is the most supportive
classroom environment contemplated by the applicable New York
regulations. M.G.’s parents objected to the CSE’s proposed
placement for M.G., provided notice of their intent to unilaterally
place M.G. in a private institution, iBRAIN, and filed a due
process complaint seeking reimbursement of tuition and other costs
1 This shorthand is used by the parties to refer to a classroom
with a maximum of twelve students, at least one licensed special
education teacher, and at least four additional teachers or
paraprofessionals, that is, at least one additional teacher or
paraprofessional for every three students. See DOE Br. at 7; N.Y.
Comp. Codes R. & Regs. tit. 8, §200.6(h)(4)(iii). This classroom
type is sometimes referred to as a “12:1+(3:1)” classroom. See DOE
Br. at 7 n.2. Likewise, the shorthand “6:1:1” refers to a classroom
with a maximum of six students, at least one licensed special
education teacher, and at least one additional teacher or
paraprofessional. See id. at 16. M.G.’s IEP also “recommended a
1:1 full-time health paraprofessional” be provided for M.G. in
addition to the classroom staff required by the regulations. App’x
at 111.
3
related to M.G.’s attendance at iBRAIN. 2 After a four-day hearing,
an Impartial Hearing Officer (“IHO”) issued a thorough Findings of
Fact and Decision, ruling that the CSE’s proposal did in fact
provide M.G. with a FAPE for the 2018-2019 school year. M.G.’s
parents administratively appealed that decision; on appeal the
State Review Officer (“SRO”) issued a detailed thirty-four-page
decision finding that the IHO had correctly determined that M.G.
was offered a FAPE.
Plaintiffs-appellants filed a complaint in District Court,
asking the Court to vacate the SRO’s decision and to order
reimbursement of tuition and other costs related to M.G.’s
attendance at iBRAIN. The District Court affirmed the SRO’s
decision, denying plaintiffs’ motion for summary judgment and
granting defendants’ cross-motion for summary judgment. Plaintiffs
then timely filed this appeal.
2 If parents are dissatisfied with the placement recommended in
their child’s IEP, they may challenge that placement. The parents
may also unilaterally enroll their child in a private school and
seek retroactive tuition reimbursement, “at their own financial
risk.” Ventura de Paulino ex rel. R.P. v. N.Y.C. Dep’t of Educ.,
959 F.3d 519, 526 (2d Cir. 2020) (citation and quotation marks
omitted); see also 20 U.S.C. §1412(a)(10)(C). Under the
Burlington-Carter test, parents are reimbursed for tuition only if
“(1) the school district’s proposed placement violated the IDEA
by, for example, denying a FAPE to the student because the IEP was
inadequate; (2) the parents’ alternative private placement was
appropriate; and (3) equitable considerations favor
reimbursement.” Ventura de Paulino, 959 F.3d at 526-27 (citation
and quotation marks omitted).
4
We assume the parties’ familiarity with the underlying facts,
procedural history, and issues on appeal.
We engage in a “circumscribed de novo review of a district
court’s grant of summary judgment in the IDEA context because the
responsibility for determining whether a challenged IEP will
provide a child with a FAPE rests in the first instance with
administrative hearing and review officers.” M.W. ex rel. S.W. v.
N.Y.C. Dep’t of Educ., 725 F.3d 131, 138 (2d Cir. 2013) (citation
and quotation marks omitted). Federal courts reviewing state
administrative proceedings under the IDEA “are required to give
‘due weight’ to the findings of” those proceedings. Muller ex rel.
Muller v. Comm. on Special Educ. of E. Islip Union Free Sch. Dist.,
145 F.3d 95, 101 (2d Cir. 1998) (quoting Bd. of Educ. of Hendrick
Hudson Cent. Sch. Dist. v. Rowley ex rel. Rowley, 458 U.S. 176,
206 (1982)). “Requiring the federal courts to defer to the findings
of the state administrative proceedings ensures that the federal
courts do not impose their view of preferable educational methods
upon the States.” Id. (citation and quotation marks omitted).
“Deference is particularly appropriate when[] ... the state
hearing officers’ review has been thorough and careful.” Walczak
5
v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). 3
Appellants argue that M.G.’s IEP incorrectly classified her
disability as “multiple disabilities” rather than “traumatic brain
injury,” leading to inappropriate recommendations for special
education programs and services. We agree with the District Court
that this is a “red herring.” Navarro Carrillo ex rel. M.G. v.
Carranza, No. 20CV04639(CM), 2021 WL 4137663, at *15 (S.D.N.Y.
Sept. 10, 2021). “Disability classification is used for one and
only one purpose: to ascertain whether a child [falls] into one of
the 13 categories that render her eligible for special education
services.” Id. There is no dispute that M.G. is eligible for
special education services, so the question before us is whether
the special education programs and services offered to M.G. denied
her a FAPE.
To assess whether M.G.’s recommended placement in a 12:1:4
classroom denied her a FAPE, we turn to the regulations describing
3 Appellants contend that deference to the administrative officers
is not warranted because the dispute “concerns an issue of law;
namely, the proper interpretation of the federal statute and its
requirements.” Mrs. B. ex rel. M.M. v. Milford Bd. of Educ., 103
F.3d 1114, 1122 (2d Cir. 1997). However, this case presents a
straightforward question of whether the IEP developed for M.G.
provided her a FAPE, in contrast to the cases cited by appellants.
See Muller, 145 F.3d at 102 (Deference was not required because
the question was interpretation of “the definition of ‘emotionally
disturbed’ set forth in the relevant state and federal
regulations.”); Mrs. B., 103 F.3d at 1122 (finding usual deference
not necessary because the administrative agency’s decision was
based on an interpretation of law regarding funding for residential
treatment).
6
the “Continuum of services[]” New York offers. N.Y. Comp. Codes
R. & Regs. tit. 8, §200.6. As required by the IDEA, the New York
regulation details how an “appropriate special education[]” should
be determined based on each “student’s unique needs.” Id.§§200.6(a), (a)(2). Section 200.6(h)(4) lists the different
special education classroom structures available, describing, as
to each such classroom: the student needs accommodated; the maximum
number of students; and the minimum number of staff required.
Section 200.6(h)(4) provides, as the regulation’s title suggests,
a continuum of class compositions, with each successive category
of classroom increasing the level of support provided.
Section 200.6(h)(4)(ii)(a) provides that a 6:1:1 classroom —
appellants’ preferred placement — is appropriate for “students
whose management needs are determined to be highly intensive, and
requiring a high degree of individualized attention and
intervention[.]” Id. §200.6(h)(4)(ii)(a). The 12:1:4 classroom
recommended for M.G. is described in §200.6(h)(4)(iii) as
appropriate for “students with severe multiple disabilities, whose
programs consist primarily of habilitation and treatment[.]” Id.
§200.6(h)(4)(iii).
In the continuum of classroom options, the 12:1:4 is the most
supportive classroom available. Rochelle Flemister, the supervisor
of school psychologists for the New York City Department of
Education, testified before the IHO that the 12:1:4 classroom is
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“the most restrictive[.]” App’x at 521. Ms. Flemister further
testified that a 12:1:4 classroom is appropriate for “students
that really have a lot of management needs” and that it gives those
students “the attention and support that they need[,]” including
attending to “whatever their medical needs are in addition to
provid[ing] education.” Id.
The CSE found, based on M.G.’s individual needs, that M.G.
should be placed in a 12:1:4 classroom. The IHO and SRO
appropriately considered the options available under §200.6(h)(4)
and agreed that a 12:1:4 classroom complied with the IDEA and with
New York regulations. The SRO found that the “12:1+4 special class
ratio for students with severe multiple disabilities, called for
in [§200.6(h)(4)(iii)], is precisely the type of programming that
will address this student’s unique needs[.]” App’x at 113. The
CSE, the IHO, and the SRO all concluded that M.G.’s IEP was
“tailored to meet the unique needs of” M.G. Walczak, 142 F.3d at
122.
The District Court found that there “is absolutely no question
that M.G. has highly intensive management needs that require a
high degree of individualized attention and intervention.” Navarro
Carrillo, 2021 WL 4137663, at *16. Appellants argue that because
M.G. has highly intensive management needs she requires a 6:1:1
classroom, and that it was error for the CSE to place her in a
12:1:4 classroom. But this argument is not supported by the plain
8
language of the regulation. The needs of students described in the
subparagraphs of §200.6(h)(4) are not mutually exclusive. M.G. has
“highly intensive[]” management needs and “severe multiple
disabilities,” and receives programming that is focused on
“habilitation and treatment[.]” N.Y. Comp. Codes R. & Regs. tit.
8, §§200.6(h)(4)(ii)(a), (iii). The regulation, as noted,
describes a continuum of classroom environments, and students,
like M.G., whose needs justify placement in a high-support
classroom under §200.6(h)(4) would also be expected to have needs
sufficient for placement in a lower-support classroom.
The CSE determined based on M.G.’s individual needs that she
should be placed in a 12:1:4 classroom. Nothing about the
regulation prohibits this. The CSE met its obligation to carefully
consider the student’s needs, and developed a plan that would
provide her with a FAPE; M.G.’s parents’ preference for a different
placement is not controlling. The IDEA “guarantees ... an
appropriate education, not one that provides everything that might
be thought desirable by loving parents.” Walczak, 142 F.3d at 132(citation and quotation marks omitted). Therefore, the District
Court did not err in upholding the SRO’s determination that a
12:1:4 classroom would provide M.G. with a FAPE.
Deference to the local decision-makers “is particularly
appropriate” in this case because both the IHO and SRO issued
“thorough and careful[]” decisions agreeing that the IEP offered
9
M.G. a FAPE for the 2018-2019 school year. Id. at 129. We must
always be “mindful that the judiciary generally lacks the
specialized knowledge and experience necessary to resolve
persistent and difficult questions of educational policy.” Id.(citation and quotation marks omitted). Applying these standards,
the District Court properly affirmed the SRO’s decision. The Court
observed that the “SRO, like the IHO before him, concluded that
the child suffered from so many different disabilities that her
needs were best served by being in the 12:1+4 classroom. And [the
SRO] specifically found that the presence of additional adults in
the classroom was most likely to provide precisely the type of
programming that will address this student’s unique needs.”
Navarro Carrillo, 2021 WL 4137663, at *17 (citation and quotation
marks omitted). We find no error in this conclusion. 4
4 To the extent appellants contend that M.G.’s IEP was procedurally
inadequate because the CSE improperly “predetermined” the outcome,
the record does not support such a contention. Appellants’ Br. at
43. “Predetermination is inconsistent with the goals of the IDEA,
which envision a collaborative process in developing a uniquely
suitable educational placement for each child. ... However, where
a Parent has actively and meaningfully participated in the
development of an IEP, courts have rejected predetermination
claims.” E.H. ex rel. M.K. v. N.Y.C. Dep’t of Educ., 164 F. Supp.
3d 539, 551 (S.D.N.Y. 2016). The March 2018 meeting, in which
appellants participated, lasted nearly three hours, and the IEP
expressly noted appellants’ concerns regarding the class
placement. See App’x at 99, 1277. As the District Court observed,
“the record actually suggests that it was the parents, not the
district, who lacked an open mind about the process.” Navarro
Carrillo, 2021 WL 4137663, at *12.
10
Appellants also argue that the District Court improperly
denied their motion for reconsideration. “We review a district
court’s denial of a motion for reconsideration for abuse of
discretion.” Simon v. City of New York, 727 F.3d 167, 171 (2d Cir.
2013). “A court abuses its discretion when (1) its decision rests
on an error of law or a clearly erroneous factual finding; or (2)
cannot be found with[in] the range of permissible decisions.” Id.(citation and quotation marks omitted). The District Court was not
required to reconsider its decision in light of IEPs, IHO
decisions, and SRO decisions from school years other than 2018–
2019, because they are not determinative of the adequacy of M.G.’s
2018–2019 IEP. See M.C. ex rel. Mrs. C. v. Voluntown Bd. of Educ.,
226 F.3d 60, 67 (2d Cir. 2000); see also J.R. ex rel. J.R. v.
N.Y.C. Dep’t of Educ., 748 F. App’x 382, 386 (2d Cir. 2018). Thus,
the District Court did not abuse its discretion by denying
appellants’ motion for reconsideration.
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We have considered appellants’ remaining arguments and find
them to be without merit. 5 Accordingly, we AFFIRM the judgment of
the District Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
5 We need not reach the question of which party at the District
Court level bears the burden of persuasion at Prong I of the
Burlington-Carter test. See M.W., 725 F.3d at 135. This question
would become significant only “if the evidence was in equipoise[,]”
which it was not in this case. Id. at 135 n.1 (citation and
quotation marks omitted).
12