Important new 2nd Circuit cases: G.B. v. Tuxedo

The 2nd Circuit has decided at least 6 special education cases of importance in recent months. I will be writing about these cases over the course of the next few days. The most recently decided of these cases is G.B. v. Tuxedo. There is nothing much interesting about this 2nd Circuit decision on its face as it simply affirms the District Court case for reasons stated by the District Court. It is the District Court case that is worthy of attention initially because the parent lost at both the hearing level and at State Review. Rare is the case that a parent prevails in court after losing throughout the administrative process. At issue in this case was the district’s effort to place the child in a self contained class vs. the parent’s desire to have the child in an integrated environment with appropriate support. Given the district’s refusal to provide an appropriate placement recommendation in an integrated environment with sufficient support services, the parent chose to place the child privately and seek reimbursement. Notwithstanding the IHO and SRO rulings to the contrary, the District Court found that “the record evidence convincingly demonstrates that placing N.B. in a self-contained classroom, both in 2006 and 2007, violated IDEA's requirement that she be educated with non-disabled children "to the maximum extent appropriate." The Court found that “ boilerplate, conclusory language cannot satisfy the requirement that the CSE "serious[ly] consider[ ] ... including the child in a regular class with such supplementary aids and services [as appropriate]." The Court noted that “a placement which may be considered better for academic reasons may not be appropriate because of the failure to provide for mainstreaming" and “the appropriate yardstick is whether [the child], with appropriate supplemental aids and services, can make progress towards her IEP goals in the regular education setting."

The Court carefully applied the Newington factors and went on to characterize the mainstreaming requirement as a rebuttable presumption: “the District has failed to rebut the presumption that an integrated class is appropriate. See A.S., 183 F.Supp.2d at 548 ("Even were the court to assume that the Board's proposed plan would be a viable and effective placement for [the student], in that she could make progress [there] ..., what would still be missing from the Board's argument is evidence that A. could not, with appropriate supplemental aids and services, make the same or even more progress in the regular education setting.”)”

Worthy of note is the Court’s take on the testimony of the parent: “While Mrs. B. does not have the academic credentials of someone like Dr. DeFina, she is an expert when it comes to the development and learning style of her own daughter, and nothing to which she testified was inconsistent with the experts' testimony. See Phillips, supra, at 1815-16 (noting that, under IDEA, parents play "the role of the child-specific expert," because they are "uniquely situated to provide a global understanding of the child's abilities," and are able to "report on a child's progress in ways a teacher cannot.””

The Court declined to accord deference to the IHO and SRO rulings citing a number of rationales: overwhelming evidence in the record to the contrary, that the “IHO incorrectly placed the burden of demonstrating that an integrated class was appropriate on N.B.'s parents,” that the IHO and SRO failed to “thoroughly address IDEA's mainstreaming requirement,” and most importantly, that when a Court reviews whether a school district violated the IDEA's "mainstreaming" requirement, “it does not impose its own views of proper educational policies and methods, rather, it enforces the statute enacted by Congress.” Thus, the rule requiring deference to the administrative decision maker on matters of educational policy did not apply.

The Court observed also that because the district recommendations violated IDEA's mainstreaming requirements, it need not determine whether those placements also violated IDEA's more general requirement that each student receive a FAPE.

Having found that the District violated the requirement that the child be educated with non-disabled peers to the maximum extent appropriate, the Court went on to find that the parental placement was appropriate. This section of the decision is most definitely worthy of a read by practitioners as it refines what is oftentimes a rather murky prong 2 analysis (recall, the rationale of this decision has the imprimatur of the 2nd Circuit). The Court states that as long as “the private placement remedies a significant deficiency in the public placement, and the student progresses in the private placement” the placement is appropriate even if the parents “chose a school that has other appealing features as well” such as features that may not be special education like in nature.

Finally, the Court looked at the equities. Of note, despite the failure to provide proper notice of the intent to make a reimbursement claim, the Court did not deny the claim; rather the Court found that it should be reduced in an amount to be determined. And, the Court emphasized that “a refusal to submit to a public evaluation will only result in a reduction of reimbursement where "prior to the parents' removal of the child from the public school, the public agency informed the parents ... of its intent to evaluate the child.” The refusal to submit the child for evaluation after removal from the public school will not result in a reduction of reimbursement.