In A.P. v. New York City Department of Education, No. 22-2636, 2024 WL 763386, 124 LRP 6283 (2d Cir. Feb. 26, 2024) (unpublished), the Second Circuit vacated and remanded a district court decision addressing tuition reimbursement for a thirteen-year-old student with autism during the 2020–21 school year, a period affected by the COVID-19 pandemic. The student had previously been approved by the New York City Department of Education (DOE) to attend a private school for students with special education needs, but the DOE did not offer the student a free appropriate public education (FAPE) for that school year.
In response, the parents enrolled the student at a private special-needs school, Keswell, and elected remote instruction because of concerns related to COVID-19. The parents then filed a due process complaint seeking tuition reimbursement. An impartial hearing officer (IHO) concluded that Keswell was generally an appropriate placement but awarded only partial tuition reimbursement based on the limited number of hours of remote live instruction provided each day.
On administrative appeal, the state review officer (SRO) determined that Keswell was not an appropriate placement and denied tuition reimbursement entirely. The parents sought judicial review, and the district court reinstated the IHO’s award of partial reimbursement. On further appeal, the Second Circuit held that the district court failed to meaningfully weigh the equities in connection with the tuition award and vacated the judgment.
The court of appeals explained that the IHO and district court misapplied the Burlington–Carter framework governing tuition reimbursement. In analyzing the second prong—whether the parents’ unilateral placement was appropriate—the IHO improperly calculated a reimbursement percentage based on the number of instructional hours provided. The court emphasized that the appropriateness inquiry requires a binary determination of whether the placement is appropriate, not a calculation of proportional reimbursement. 2024 WL 763386, at *2.
The court further explained that once parents satisfy the first two prongs of the Burlington–Carter test, Supreme Court precedent establishes a presumption of full reimbursement, subject to reduction only if equitable considerations warrant such a result. Citing Forest Grove School District v. T.A., 557 U.S. 230, 247 (2009), and 20 U.S.C. § 1412(a)(10)(C)(ii), the court noted that reimbursement for the cost of private enrollment is the ordinary remedy when a student is denied FAPE, unless equities justify a reduction. Id.
Although the IHO found that the equities favored the parents, the IHO nonetheless awarded only partial reimbursement without identifying or explaining any equitable factors supporting the reduction. The court held that this failure required vacatur and remand. It concluded that the district court erred in affirming the partial award without addressing the absence of articulated equitable findings. Id.
The decision reflects that determinations regarding the appropriateness of a unilateral placement must remain distinct from any subsequent equitable analysis of the amount of reimbursement, and that reductions from full reimbursement must be supported by clearly identified and explained equitable considerations.