Additional Evidence

The pendulum swings back and forth in Court decisions regarding the admissibility of additional evidence in IDEA actions. There appears to be a trend towards admissibility, however. Most recently, the SDNY allowed affidavits from private school personnel in Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ., 550 F.Supp.2d 420, SDNY(2008).

Federal Court Reverses NY SRO Again

Parent placed the child at a private school and requested a hearing at which she sought reimbursement. IHO ordered reimbursement; SRO reversed in 06-088. The Court in Jennifer D. ex rel. Travis D. v. New York City Dept. of Educ.(550 F.Supp.2d 420, 432 (S.D.N.Y.,2008)) focused on the district’s failure to offer a program in the LRE. The Court found that the SRO decision was not due deference reasoning that:

the SRO's decision does not enumerate the relevant factors or engage in an analysis of whether the IEP provided for a placement in the least restrictive environment. Because the SRO did not make any findings on this issue, the decision of the SRO is not entitled to deference with respect to whether the recommended placement in a special school with a 12:1:1 staffing ratio, and the subsequent offer of placement at PS 370 satisfied this requirement. Gagliardo v. Arlington Cent. Sch. Dist., 418 F.Supp.2d 559, 562 (“[W]here there are no administrative findings on an issue germane to the court's determination, deference would be inappropriate.”), rev'd on other grounds, 489 F.3d 105.

Additionally, and importantly, in finding that the parent had established the appropriateness of the unilateral placement, the Court distinguished its holding from Gagliardo II as follows:

The defendant relies heavily on the recent decision in Gagliardo II in support of its argument that the plaintiff's placement was not appropriate. In Gagliardo II, the Court of Appeals for the Second Circuit reversed the district court's judgment that had granted reimbursement, finding that the district court erred in concluding that the unilateral placement at issue was appropriate. However, in that case the court was addressing an administrative record where “the IHO, confronted with the same evidence, found that [the unilateral placement] was not an appropriate placement,” and the SRO had affirmed the IHO decision. Gagliargo II, 489 F.3d at 113. The court found that the district court had improperly afforded the IHO's findings no weight, particularly in light of the fact that the SRO noted that the IHO's findings were supported by the record. Id. at 114 n. 2. The court found that the IHO's finding was reasoned and supported by the record and therefore reversed the district court's judgment ordering reimbursement. Id. at 114. In contrast, in this case the IHO found that the unilateral placement was appropriate, and the SRO made no findings on this issue. This Court has given due weight to the findings of the state administrative officers, and based on its review of the record agrees with the determination of the IHO that the placement in the Legacy Program was appropriate. Therefore, unlike in Gagliardo II, this Court does not reach a different conclusion from the state administrative officers on the issue of whether the private placement was appropriate.

Attorney fees for due process violation

The focus of this blog is generally on currently decided cases and legislative developments. Although not just decided, this case is of great import with respect to district strategies that deny parents due process rights. In Engwiller v. Pine Plains, 110 F. Supp. 2d 236(SDNY 2000), the Parent prevailed on her claim that SED did not assure the provision of the hearing decision within 45 days. The SDNY awarded fees, stating that “Plaintiff has prevailed on her central claim by securing from this Court a declaration that her procedural rights under the IDEA were violated, and an order that the State provide her with a decision on [the child’s] IEP in short order. Accordingly, Plaintiff is entitled to reimbursement from the State for attorneys' fees expended on SED administrative proceedings and this litigation.” Note that the award of fees was made without regard to the merits of the underlying proceeding; in fact, the attorney fee award was made prior to the issuance of the hearing officer’s decision.