Neske v. New York City Department of Education, No. 22-2962-CV, 2023 WL 8888586, — F. App’x —, 123 LRP 37531 (2d Cir. Dec. 26, 2023), involved a unilateral parental placement at a private school known as the International Institute for the Brain (“iBrain”). The parents sought tuition reimbursement for the 2018–19 school year. The student, who had learning disabilities resulting from a traumatic brain injury, had previously attended a private school called iHope. The parents moved the student to iBrain after disagreeing with the New York City Department of Education’s proposed public-school placement for that school year.
The impartial hearing officer and the state review officer determined that the student was denied a free appropriate public education (FAPE) and that iBrain was an appropriate placement. However, both concluded that equitable considerations did not support an award of tuition reimbursement and denied the parents’ claim. The federal district court affirmed those determinations, and the Second Circuit Court of Appeals likewise affirmed.
The Court of Appeals held that the district court properly exercised its discretion in denying reimbursement based on equitable considerations. The court concluded that the administrative record supported findings that the parents failed to cooperate with the IEP development process and were likely involved in a broader, coordinated effort to disrupt that process in order to facilitate the transfer of students from iHope to iBrain.
The record showed that numerous iHope parents, including the Neskes, repeatedly requested that a physician attend in-person IEP meetings but then failed to attend those meetings themselves. The impartial hearing officer and state review officer credited testimony that DOE physicians could not physically attend all IEP meetings due to the high volume of such requests. When physicians did attend at parents’ insistence, meetings were frequently cancelled on short notice or the parents did not appear. The district court found that these coordinated cancellations functioned as a delaying tactic designed to impede the DOE’s efforts to develop IEPs.
The Court of Appeals further relied on administrative findings that the parents were uncooperative, including inconsistencies in the mother’s testimony. The court also noted that the parents failed to attend the final IEP meeting, despite the DOE’s attempts to schedule the meeting at a convenient time and location. Based on these facts, the court concluded that the parents’ conduct reflected bad faith and supported denial of tuition reimbursement on equitable grounds.
The court distinguished this case from situations in which a parent’s failure to attend an IEP meeting results from inadvertence or circumstances beyond the parent’s control. For example, in Davis v. Banks, No. 21-CV-3265, 2023 WL 6214107, 123 LRP 29915 (S.D.N.Y. Sept. 25, 2023), a grandparent became lost while traveling to a meeting, a circumstance that did not reflect obstruction or bad faith. By contrast, the conduct in Neske reflected a pattern of noncooperation rather than isolated or unavoidable mistakes. While errors are inevitable, the court emphasized that cooperation by all parties is essential to the IDEA process.