S.B. v. New York City Department of Education, No. 15-CV-1869, 2017 WL 4326502, 70 IDELR 221 (E.D.N.Y. Sept. 28, 2017), is a recent case that merits attention for its treatment of issues of deference to administrative decision makers, and evaluation and IEP requirements. The case involved a claim for reimbursement of private school tuition for the 2012-13 school year, when the student, C.B., was an eight-year-old second grader classified as having a speech or language impairment. Judge Glasser granted the parents’ motion for summary judgment, overturning the decisions of the impartial hearing officer and the state review officer.
C.B. attended a private school in 2011-12, and her parents obtained tuition reimbursement for that year through a due process hearing decision. Reports from the private school noted needs in reading, speech, and occupational therapy; a classroom observation and psychoeducational report from the Department noted serious challenges, including writing problems, poor working memory, and general academic performance at below age level. The IEP developed in the spring of 2012 called for a 12:1:1 (twelve students, one teacher, one paraprofessional) placement with speech-language therapy, occupational therapy, and counseling. The parents were supposed to receive notice of the actual school placement by August 15, 2012, but did not receive it until August 21, after the parents contacted the Department. The placement was P.S. 91, but when C.B’s mother tried to visit, she was told she could not do so until the school opened in the fall. The parents reenrolled C.B. in the private school, but the mother eventually was able to visit P.S. 91 and expressed concerns over the placement, the 12:1:1 class recommendation, and the IEP, and notified the Department of the parents’ intention to keep the child in the private school and seek reimbursement. The parents filed a request for a hearing. The decisions of the impartial hearing officer (IHO) and state review officer (SRO) upheld the program and placement offered by the Department.
The court’s opinion declared that the fact that the IHO and SRO agreed with each other did not warrant additional deference to the administrative outcome. The judge said that neither decision indicated a genuine engagement with the claims advanced by the parents so as to warrant deference. The court found the decisions “conclusory, generic, lacking thorough and careful analysis,” and “tellingly, silent about contrary testimony on most disputed issues.” 2017 WL 4326502, at *9 (internal citation, quotations, and ellipsis omitted). In the court’s view:
The SRO’s decision, to which the court is to defer primarily, is particularly vague. At no point does it note any detail about the contents of the IEP, the reports that were available to the CSE, or specific testimony. Its discussion section spans just four single-spaced pages, the vast majority of which is boilerplate recitation of law and citations. On a number of points, the SRO makes a conclusion without addressing the Parents’ argument at all. The IHO’s decision follows a similar formula, conclusorily stating that there was no denial of a FAPE on each issue, without further explanation. The section discussing whether the DOE offered C.B. a FAPE spans three double-spaced pages, one of which is a boilerplate recitation of the applicable law. To its credit, the IHO decision offers six double-spaced pages summarizing the parties’ respective arguments and the testimony from the IHO hearing. However, it does not substantively describe the IEP or the reports that were available to the CSE, nor does it weigh contradictory testimony or evidence to support its conclusions.
Id. at n.9 (citations to SRO and IHO decisions omitted).
In reviewing the record, the court noted that the child was not reevaluated in speech-language, occupational therapy and social history before the IEP meeting, despite the previous evaluations being done four years earlier. The court thus found the failure to reevaluate and base the IEP on current evaluations to be procedural violations. As for substantive violations, Judge Glasser agreed with the parents that the IEP failed to incorporate the information from the psychoeducational report into the statement of present levels of performance, as well as the annual goals. The court said that no evidence actually supported the goals in the IEP in light of the child’s individual needs. Combined with the procedural violations, this deprived the child of an appropriate education. The court further refused to defer to the administrative decisions as to the 12:1:1 program, finding that the decisions failed to address the parents’ contention that the class would be too large and a smaller class was not considered. The court also said that the decisions did not come to grips with evidence focused on C.B.’s individual needs that supported the conclusion that a 12:1:1 ratio was not going to work for her. The court said the Department failed to meet its burden to prove that the class ratio would have allowed the child to make progress. The court again found denial of an FAPE. The IHO had ruled conditionally that the private school was an appropriate placement and that the equities favored the parents. Those findings were not contested, but in the final pages of its opinion the court marshalled the evidence that supported the equitable considerations in favor of the parents.
The opinion is significant in its treatment of the administrative deference issues, and reinforces the importance of the IHO avoiding making summary conclusions that neither discuss the specific evidence which supports them nor address the party’s arguments. In addition, the opinion stresses the importance of the IHO explaining in his/her decision how contradictory reports and testimony were weighed. Greater deference is likely if the IHO follows the court’s “lesson.”