The student had been offered a placement at the Horan School, a District 75 program for children with special needs. The parent had instead enrolled the student at the private iBrain school and sought tuition reimbursement, first in her due process complaint and then on appeal. She lost before the IHO, lost again before the state review officer (SRO), lost a third time before the district court, and now the Second Circuit has affirmed.

On the procedural side, the parent argued she had been shut out of the decision-making process because the prior written notice of the public school placement did not arrive until a March 30, 2022 letter – even though the individualized education program (IEP) had been issued on February 11, 2022, and was supposed to be implemented by February 21, 2022. The court agreed that the timing was off, but said the lapse did not amount to a denial of FAPE. By the time the late notice went out, the student had already been offered a placement at Horan for the 2021–22 school year, and the parent had already rejected that school for that year. The parent also never explained what she would have done differently with timelier notice, and, as the court pointed out, she had filed her due process complaint objecting to any District 75 placement before the placement letter ever reached her.

On substance, the parent’s pitch was that the proposed IEP failed to provide FAPE because it did not include music therapy, hearing education services, or vision education services. The Second Circuit sided with the district court, which had affirmed the administrative decision that those particular services were not needed – the goals they would have addressed were already covered by other services in the IEP. Communication gains were to come through sign language support and speech-language therapy. As for visual tracking, focus, movement, and self-care, the IEP folded those into physical and occupational therapy exercises, with five 60-minute occupational therapy sessions and four 45-minute physical therapy sessions per week. 2025 WL 2775936, at *3. The parent also raised complaints about the lack of air conditioning at Horan and the adequacy of its service areas, but the court noted those points had not been raised in the due process complaint. Same with the argument that the public school system had predetermined the denial of music therapy through a blanket policy of always refusing it – the court said no such policy had been shown to exist.

The parent’s last set of arguments turned on Horan itself: that the school lacked the personnel to deliver what the IEP called for, and that the student, who has cerebral palsy, would be grouped with students with autism. The court called the staffing concern speculative, pointing to testimony from Horan’s assistant principal that the school could implement the IEP and would contract with outside service providers if it had to. On the grouping point, the court – citing the non-precedential order in J.C. v. New York City Department of Education, 643 F. App’x 31, 33 (2d Cir. 2016) – said “grouping evidence is not the kind of non-speculative retrospective evidence that is permissible.” 2025 WL 2775936, at *4.

Taken together, the strands of the decision share a common thread: a procedural slip that comes after the parent has already rejected the placement and filed for due process is not, on this record, a denial of FAPE; an IEP can satisfy FAPE without every requested service so long as the underlying goals are met by the services it does include; objections that were never raised in the due process complaint do not get a second life on review; and arguments about staffing and grouping at the assigned school, where the testimony is that the IEP can be implemented, are treated as speculative rather than as proof that FAPE was denied.

The Individuals with Disabilities Education Act (IDEA) defines FAPE to require that the education “meet the standards of the State educational agency.” 20 U.S.C. § 1401(9)(B). After clearing away other issues, the Second Circuit decided that whether the 12:1:4 IEP delivered FAPE turned on a question of state law that the New York courts had not yet answered. The court flagged the friction between two provisions of N.Y. Comp. Codes R. & Regs. tit. 8 § 200.6(h)(4): subsection (ii)(a) caps classes at six for “students whose management needs are determined to be highly intensive, and requiring a high degree of individualized attention and intervention,” while subsection (iii) caps classes at twelve for “students with severe multiple disabilities, whose programs consist primarily of habilitation and treatment.” Whether courts should defer to the agency’s reading of that tension, the court added, was itself a question for the state court. So it certified the question: “When a student is covered by more than one class size regulation under § 200.6(h)(4), do the varying restrictions serve as distinct requirements that must be independently fulfilled or as a list of class size options from which the DOE may pick?” 134 F.4th at 698-99.

In February, the New York Court of Appeals answered. Cruz v. Banks, No. 1, 2026 WL 436354, at *1, 126 LRP 3907 (N.Y. Feb. 17, 2026), held that section 200.6(h)(4) “sets forth a list of mutually exclusive alternatives” for class sizes and staffing in special education classes. A student’s committee on special education (CSE), the equivalent in New York State of an IEP team, the court said, must therefore pick the listed alternative that best meets the student’s individual needs. The court described section 6(h) as supplying a default — a maximum class size of 15, or in some cases 12, for students who need a self-contained setting — with four exceptions layered on top.

The first exception, in section 200.6(h)(4)(i), caps class size at 12 for students whose management needs interfere with instruction enough to require an additional adult, with one or more supplementary school personnel assigned. The second, section 200.6(h)(4)(ii)(a), caps class size at six for students with highly intensive management needs requiring a high degree of individualized attention, again with supplementary personnel. The third, section 200.6(h)(4)(ii)(b), caps class size at eight for students with intensive management needs requiring a significant degree of individualized attention, with the same staffing add-on. The fourth, section 200.6(h)(4)(iii), caps class size at 12 for students with severe multiple disabilities whose programs consist primarily of habilitation and treatment, with a staff-to-student ratio of one to three.

On the text alone, the court said, the fourth exception could be read as an alternative to the first three or as an additional requirement piled onto them. 2026 WL 436354, at *4. Structure pointed the other way. Reading the fourth exception as cumulative would force schools to run not only the five configurations the regulation expressly contemplates, but also additional classrooms in 6:1+(3:1) and 8:1+(3:1) setups for students who fell under both the fourth exception and either the second or the third. The court found it unlikely that the agency had quietly required those more resource-intensive configurations through the awkward intersection of list items. Students with severe multiple disabilities who primarily need habilitation and treatment, the kind of students contemplated by the fourth exception, likely have intensive or highly intensive management needs. If the State Education Department had actually wanted those students placed mainly in 6:1+(3:1) or 8:1+(3:1) classrooms, the court reasoned, it would have said so, rather than writing a 12-person cap that would then apply to almost no one.

Regulatory history pulled in the same direction. Earlier versions of the rule had set special class requirements by disability classification, with ratios that ran from 18:1 to 5:1:1, and under that older regime the State DOE had unambiguously treated 12:1+(3:1) classrooms as an alternative for certain students rather than as an additional requirement. 2026 WL 436354, at *4. The 1982 amendments referred to the new needs-based options as mutually exclusive alternatives, and so did a draft version. The final 1982 amendments dropped the prior requirement that a student could be placed in a 12:1+(3:1) class only when the other options were unsuitable, but, the court said, nothing in the amendments’ history suggested the agency had stopped viewing the 12:1+(3:1) ratio as the regulation’s most supportive alternative. The amendments simply reshaped existing “special class” categories into needs-based ones. Id. at *5. The current regulation tracks the 1982 version. A later amendment added the 8:1:1 ratio and raised the default cap from 12 to 15, and the court read those newer pieces as reinforcing the same reading: a list of mutually exclusive alternatives, with the CSE charged to use its knowledge and expertise to select the one that best serves a student’s individual needs.

Back in federal court, a brief per curiam opinion, Cruz v. Banks, 72 F.4th 208, 126 LRP 10055 (2d Cir. Apr. 7, 2026), applied the state court’s reading and affirmed the district court’s judgment upholding the 12:1:4 placement. Because O.F. had both severe multiple disabilities and highly intensive management needs, the Second Circuit said, he could properly be placed in either a 12:1:4 classroom under section 200.6(h)(4)(iii) or a 6:1:1 classroom under section 200.6(h)(4)(ii)(a). Id. at 209. The CSE’s pick was in line with state law. The state review officer (SRO) and the impartial hearing officer (IHO) had reasonably ruled the 12:1:4 placement appropriate for this student, and the Second Circuit would not disturb that finding.

What the post-certification picture leaves us with is the conclusion the opinions themselves draw: when a student is covered by more than one provision of section 200.6(h)(4), those provisions describe mutually exclusive options rather than overlapping demands; the CSE chooses among them based on what best meets the student’s individual needs; and where a student fits more than one provision, a placement that matches any of the available options is in accordance with state law. As the closing observation in the post puts it, IHOs working through class-size disputes for self-contained placements now have a definitive answer from the State’s highest court on how the regulation’s options are to be applied.

The student was a kindergartner with an unspecified disability. Believing the program the public schools proposed failed to offer a free appropriate public education (FAPE), the parents unilaterally placed the child at a Jewish private school and sought full tuition reimbursement in a due process proceeding. The Impartial Hearing Officer (IHO) agreed the public school program did not offer FAPE and ordered reimbursement – but deducted the share of tuition attributable to Judaic Studies, reasoning that that portion of the instruction was non-secular. The parents appealed that exclusion to the SRO, who reversed the IHO’s deduction. The public school system then sued in district court to overturn the portion of the SRO’s decision requiring payment for the Judaic Studies share of tuition.

In affirming the SRO, the court said that a plain-language reading of 34 C.F.R. § 76.532(a)(1) – which provides that “[n]o State or subgrantee may use its grant or subgrant to pay for . . . [r]eligious worship, instruction, or proselytization” – would violate free exercise principles as articulated in Espinoza v. Montana Department of Revenue, 591 U.S. 464, 488–89 (2020), and other recent Supreme Court holdings. The court made the same point about the New York State Constitution’s language that “[n]either the state nor any subdivision thereof, shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any [religious school].” N.Y. Const. art. XI § 3. Recent Supreme Court cases such as Espinoza prohibit disqualifying otherwise eligible recipients from funding based on their religious character, and the Court has viewed funding disqualification as a form of indirect coercion. The E.L. court further observed that the relevant New York State Constitution language may not even apply to education of children with disabilities.

The court went on to say that even under Supreme Court caselaw predating the recent Free Exercise developments, funding the Judaic Studies classes did not violate the federal regulations, New York’s Constitution, or the Establishment Clause. The aid here, in the court’s view, conformed to a principle of neutrality, and any religious indoctrination was not done at the direction of the government – the religious use of the aid was the result of the independent choice of the aid recipient. The school system argued that the Judaic Studies classes were not covered by a neutral program, but the court said it would defer to the SRO’s determination that, for this student, the absence of enrollment in those classes would deny FAPE. Even without applying deference, the court said, it would conclude that the Judaic Studies classes were a core part of the student’s FAPE, as they were said to develop reading comprehension skills and expressive and receptive language skills.

The court continued: “Moreover, the classes comprise a key part of the school day, taking place for thirty minutes to an hour in the morning, between other classes such as language studies, art therapy, and educational therapy. . . . For a five-year-old, these are critical periods of learning and development. To deny funding for these specific class periods would effectively exclude the child from these periods of learning.” 2025 WL 1781305, at *4. On that basis, the court rejected an argument that equitable principles militated against a full tuition reimbursement award, explaining that the classes were not extraneous school services but a part of the core curriculum. The court also noted that the Free Exercise principles advanced by the parents might provide an additional basis for its decision, though it said it was not necessary to resort to those principles to uphold the SRO’s determination that full tuition reimbursement should be provided.

The significance of E.L. lies in how the opinion weaves together several threads the court itself identifies. It treats a plain-language reading of the federal regulation and the parallel state constitutional provision as, in this setting, incompatible with recent Free Exercise doctrine. It accepts that aid flowing to religious instruction can still satisfy neutrality and independent-choice principles when the religious use results from the recipient’s decision rather than government direction. And it ties all of that to the FAPE determination: because the Judaic Studies classes were found to be a core part of the student’s FAPE rather than extraneous services, carving them out of the reimbursement would, as the court put it, effectively exclude the child from critical periods of learning. The court’s observation that Free Exercise principles might independently support the same outcome – though unnecessary to the result – underscores why, on these facts, full tuition reimbursement survived challenges grounded in federal regulation, state constitutional text, and the Establishment Clause alike.

The student at the center of the case has autism and ongoing gastrointestinal care needs. During the 2024–25 school year he attended Bradley Hills, a public school in Bethesda. Over the summer, the family moved to Germantown, and, based on the new address, Montgomery County Public Schools (MCPS) assigned him to Fox Chapel Elementary School. In July 2025, the parent filed a due process complaint, alleging that MCPS did not provide the student necessary reasonable “accommodations relating to his medical and feeding needs, transportation needs, and need to be near medical care; failed to evaluate [the student] and consider his behaviors and symptoms in a timely and adequate manner; failed to provide an appropriate IEP placement; and failed to maintain his placement at Bradley Hills, which [the parent] deemed necessary to provide him with a free appropriate public education (‘FAPE’) in the least restrictive environment.” Id. at *1. The parent asked that the student be allowed to remain at Bradley Hills under stay-put and filed a motion for stay-put relief with the office of administrative hearings.

In late August, the Administrative Law Judge (ALJ) granted the motion, but the parent promptly sought clarification that the ruling required the student to remain at Bradley Hills specifically. That clarification motion was still pending on September 17, when the parent filed a pro se federal suit alleging violations of IDEA, Section 504, and the Americans with Disabilities Act (ADA) tied to the transfer to Fox Chapel, along with a motion for temporary relief. The ALJ later denied the clarification motion, ruling that the move to Fox Chapel did not amount to a change in educational placement because the basic education program and support services were not claimed to have been fundamentally changed or eliminated.

The federal district court first addressed exhaustion and ruled that the parent did not need to exhaust administrative remedies in seeking a stay-put injunction. The court noted that the Fourth Circuit has allowed a district court to consider a preliminary injunction motion to implement stay-put while due process proceedings are still pending, and observed that other circuits have explicitly said exhaustion does not apply because a belated decision will not remedy the alleged violation and would not vindicate the right to remain in the current placement. Citing the exhaustion requirement, however, the court dismissed all claims to the extent they sought anything other than a stay-put injunction.

On stay-put itself, the court leaned on circuit precedent: “‘the term ‘educational placement’ as used in the stay-put provision refers to the overall educational environment rather than the precise location in which the disabled student is educated.’ AW ex rel. Wilson v. Fairfax Cnty. Sch. Bd., 372 F.3d 674, 676 (4th Cir. 2004).” 2025 WL 2962754, at *4. The parent, the court said, offered no grounds to dispute that the new placement was identical in specialized instruction, related services, and other supports. Without a material difference in the educational services, the stay-put requirement was satisfied.

The court acknowledged, however, that “issues relating to the commute to or from school could, under certain circumstances, provide a basis to conclude that a change in the geographic location of an educational placement results in a material change that would violate the stay-put requirement . . . .” Id. at *5. The parent argued that the transfer prevented safe implementation of the Individualized Education Program (IEP) because of the new school’s distance from the student’s gastrointestinal specialist and his feeding therapy and medical providers, and that a long commute carried serious medical risks including motion sickness, reflux, and g-tube complications. But the parent had not presented evidence of those matters to the ALJ and furnished only limited information about them. On that record, the court said, the ALJ properly denied the motion to enforce stay-put.

The parent did submit various medical documents to the court in lieu of a reply brief on the motion for temporary relief. The court said the commute argument and the new evidence, including letters from the student’s medical providers, should be presented to the ALJ in the first instance. The court therefore denied the motion for a preliminary injunction, dismissed the portions of the case that had not already been dismissed on exhaustion grounds, and remanded to the ALJ for consideration of stay-put relief. The court added that the parent “may also, as suggested by the Board, submit a request for a Change of School Assignment based on [the student’s] unique circumstances, to which [the school system] should give careful consideration.” Id. at *6. The dismissal was without prejudice to refiling.

In the absence of a requirement to exhaust a request for stay-put injunctive relief in the first place, it may seem odd for the court to remand the stay-put issue to the ALJ. But the parent was the one who sought stay-put relief from the ALJ to begin with, and parents do frequently pursue that option. A more basic concern with the decision may be that, since “placement” embodies “place,” the idea that a change of place is not a change of placement might seem wrongheaded. The courts are widely of the view, though, that an interpretation consistent with that of the Fofanah court is correct, and it is true that school districts frequently change school assignments of children without disabilities based on factors such as moves within the district and availability of space and personnel.

The significance of Fofanah lies in what it confirms within its own four corners: stay-put protects the overall educational environment rather than a specific building, so a reassignment that leaves specialized instruction, related services, and other supports intact ordinarily will not trigger stay-put. At the same time, the opinion leaves open that commute-related circumstances can, in a given case, render a geographic change material enough to violate stay-put – but only on a developed record. And because a parent need not exhaust administrative remedies before seeking a stay-put injunction, yet the ALJ remains the proper forum for evidence that was never presented there, the decision illustrates how these parallel tracks can meet, and how a case can be routed back for the factual record the provision’s application requires.

The court applied the familiar factors governing fee awards, including “‘(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney’s customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the ‘undesirability’ of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.’” S.C., 2024 WL 3518522, at *2 (quoting Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182, 186 n.3 (2d Cir. 2008)).

With respect to hourly rates, the court concluded that the magistrate judge adequately considered the relevant factors and reasonably determined that the case was not novel or difficult. The report characterized affidavits from other IDEA practitioners as self-serving, found survey data on New York City attorney rates insufficient as to education law practitioners, and rejected a ChatGPT-4 compilation of rate information as not probative and unreliable. Instead, the magistrate judge relied on prior fee awards found reasonable for the specific attorneys involved, which were lower than the rates requested.

The court also rejected the argument that the fee reduction improperly penalized the parent because the defendant did not contest the administrative case. It noted that counsel billed 88.8 hours preparing for a hearing that lasted 2 hours and 43 minutes, and more than 20 hours preparing a closing brief after learning that the defendant would not present a case. In addition, the court applied the IDEA’s offer of settlement provision, 20 U.S.C. § 1415(i)(3)(D)(i), observing that the defendant had offered $35,000 in fees and that the court ultimately awarded $34,397.99 for fees incurred through the date of the offer. The court entered a total fee award of $34,397.99 and rejected the parent’s request for $88,290.00.

Reductions from requested fee amounts are not unusual, although the magnitude of the reduction here may draw attention. The court’s discussion of artificial intelligence is also notable. Relying on the magistrate judge’s report and recommendation, the court observed that the ChatGPT response contained no probative information and cited a Second Circuit decision addressing AI fabrication of precedent. The magistrate judge stated: “In light of its propensity to fabricate information, ChatGPT, at least in its current iteration, should not be utilized to support a fee application.” S.C. v. New York City Dep’t of Educ., No. 23-CV-1266 (LGS) (JLC), 2024 WL 1447331, at *5 n.1, 124 LRP 10444 (S.D.N.Y. Apr. 2, 2024).

The opinion underscores the court’s adherence to established fee-award principles while declining to credit AI-generated compilations as evidentiary support. Within the framework applied, the court treated both the billing record and the reliability of supporting materials as central to determining a reasonable award.

The parents filed suit on July 7, 2024, and litigation over emergency relief for pendency costs extended into the following year. They moved for summary judgment and later renewed their request for emergency relief on May 23, 2025. The requested relief was broad: a declaration that iBrain constituted each student’s pendency placement during proceedings concerning the 2024–25 extended school year; an order requiring funding of tuition, transportation, and, where applicable, nursing services throughout the administrative and judicial proceedings; and an order directing that payments be made directly to iBrain and other providers.

The four students’ procedural histories varied. In one matter, the Impartial Hearing Officer (IHO) ordered partial transportation funding, and the State Review Officer (SRO) later ordered full funding; neither party appealed. In another, a pendency order required private transportation funding, and an SRO decision had issued, though the appeal period had not expired. In a third, the pendency order addressed transportation and related services, and an SRO decision had issued, but the record before the court did not include information about it. In the fourth, the pendency order included supplemental related services, nursing, and transportation, and the IHO decision was on appeal to the SRO.

The court began by addressing mootness. After criticizing aspects of the parents’ evidentiary submissions, it concluded that the claims regarding educational placement and tuition for the 2024–25 school year were moot. The undisputed record established that all pendency tuition payments for that year had been made. The voluntary cessation exception did not apply because the tuition dispute for that school year could not recur, and in some matters the pendency period itself had ended. A claim for late fees was deemed waived, both because it had not been properly raised and because the pendency orders did not include late fees, the iBrain contract did not treat late fees as tuition, and pendency tuition is paid retrospectively.

The analysis did not end there. With respect to transportation and nursing services for three students, the court determined that although some payments had been made, the plaintiffs were entitled to declaratory relief and to an order requiring payment of outstanding balances in the ordinary course of business. For one student, however, the IHO had denied inclusion of nursing services in the pendency order, and summary judgment was denied as to that claim. The court also emphasized that the ultimate merits determination regarding entitlement to transportation did not govern a claim seeking payment during pendency.

In addressing the mechanics of payment, the court acknowledged that IDEA does not require circumvention of ordinary payment procedures and that 20 U.S.C. § 1415(j) operates as an automatic injunction with respect to educational placement, not payments. Still, it found that the specific circumstances mattered. Where the school year had concluded, all contractual services had been delivered, and reimbursement had been delayed for months, directing payment in the “ordinary course” made little sense. The court concluded that the full cost of the student’s transportation services for the academic year was long past due and must be reimbursed in full, and it entered orders addressing each student’s claims for related service payments.

The decision draws a clear line between moot tuition claims once fully paid and outstanding related service balances that remain unpaid after services are rendered. Within the confines of the pendency framework, the court treated completed services and prolonged delay as determinative under the facts presented.

The plaintiffs sought declaratory, injunctive, and compensatory education relief on behalf of a class of students with disabilities, alleging that the New York City Department and Board of Education, along with the Chancellor in her official capacity, violated IDEA by ending services when students turned twenty-one rather than continuing through the end of their twenty-first year. The district court dismissed the action for lack of subject matter jurisdiction based on failure to exhaust administrative remedies.

On appeal, the Second Circuit first addressed the nature of IDEA’s exhaustion requirement. Relying on recent Supreme Court authority requiring “unmistakable evidence” before treating an exhaustion requirement as jurisdictional, the court concluded that IDEA’s exhaustion provision is a claim-processing rule rather than a jurisdictional bar. In reaching that conclusion, the court observed that several other circuits had already characterized IDEA exhaustion as nonjurisdictional and that the Second Circuit had previously left the issue unresolved.

The court then considered whether exhaustion should be excused. It explained that exhaustion may be excused where plaintiffs challenge a policy or practice of general applicability alleged to be contrary to law, an exception the court had recognized decades earlier. The court traced the exception to legislative history surrounding Congress’s response to Smith v. Robinson, 468 U.S. 992 (1984), and enactment of the Handicapped Children’s Protection Act of 1986, Public Law No. 99-372, 100 Stat. 796, emphasizing that the history informed the court’s approach to exhaustion rather than interpretation of statutory text.

Surveying decisions from other circuits, the court noted that exhaustion has been excused where claims present pure questions of law and administrative review would not advance the purposes of developing a factual record, applying agency expertise, or promoting efficiency. The Second Circuit reiterated that plaintiffs invoking the policy-or-practice exception must identify a specific policy of broad applicability and demonstrate that administrative proceedings would not meaningfully further those goals.

Applying that framework, the court concluded that the plaintiffs adequately identified an across-the-board policy of providing a free appropriate public education (FAPE) only until students turn twenty-one, rather than through their twenty-second birthday. The court further determined that requiring exhaustion would not serve the purposes of the exhaustion requirement because the central claim for declaratory relief was not tied to individual student circumstances, would not benefit from an administrative record, and did not require the exercise of educational discretion or expertise. The court declined to credit the defendants’ argument that individualized administrative proceedings could provide relief, concluding that the independent policy-or-practice ground was sufficient to excuse exhaustion.

The court emphasized that its decision did not resolve whether students are entitled to IDEA services through their twenty-second birthday, but instead addressed only the threshold exhaustion question. It vacated the dismissal and remanded for further proceedings.

The decision reflects that IDEA’s exhaustion requirement functions as a claim-processing rule rather than a jurisdictional bar and that exhaustion may be excused where plaintiffs mount a facial challenge to a broadly applicable policy and administrative proceedings would not advance the purposes underlying exhaustion.

The student’s attendance issues dated back to seventh grade, when she missed more than ten percent of her classes and failed state-mandated exams. In eighth grade, despite twenty-five absences, the district provided targeted interventions that enabled her to pass all of her classes. During ninth grade, which began remotely during the COVID‑19 pandemic, the student enrolled in advanced coursework against the district’s recommendation for grade‑level classes and subsequently failed five of seven courses while missing between twenty‑four and twenty‑nine days of instruction. Teachers attributed her academic struggles to frequent absences rather than to a suspected learning disability, and she ultimately passed several courses through summer instruction.

In tenth grade, the pattern continued. The student again enrolled in advanced classes over the district’s objections and missed approximately twenty‑five days of school. Teachers reported that she performed well when present and attributed her academic difficulties to absenteeism. The district recommended additional academic support, which the parents declined. The parents later withdrew the student from school in February of her tenth‑grade year and began homeschooling. They filed a due process complaint the following September.

The district offered to evaluate the student in October 2022, but the parents refused consent. The parents later obtained an independent neuropsychological evaluation, which did not diagnose attention deficit hyperactivity disorder or dyslexia but identified learning disabilities in reading comprehension and mathematics. The district scheduled a meeting to review the evaluation, but the parents did not attend. The district concluded it lacked sufficient information to determine eligibility because the report did not address classroom performance or account for the student’s extensive absences.

After hearing, the impartial hearing officer ruled for the district, and the district court affirmed. On appeal, the Fifth Circuit agreed that the district satisfied its child find duty by October 2022 when it initiated the evaluation process. Although the court acknowledged prior cases in which absenteeism contributed to triggering child find, it distinguished those decisions as involving additional indicators such as mental health concerns or behavioral or medical issues. Here, the parents routinely excused absences for family travel and minor medical reasons, and the record showed that teachers viewed absenteeism—not a suspected disability—as the source of the student’s academic problems.

The court also rejected the argument that the student’s poor academic performance alone triggered child find, emphasizing that the parents insisted on advanced coursework contrary to district advice and that the student performed adequately when attending school consistently. Because the student was ultimately found ineligible, the court further concluded that any alleged child find delay did not result in a denial of a free appropriate public education (FAPE).

With respect to eligibility, the court noted that the independent evaluator failed to consider vision testing, classroom observations, teacher input, or whether the student’s difficulties reflected a lack of appropriate instruction caused by chronic absenteeism, as required by regulation. The court emphasized that the parents’ refusal to consent to district testing and their failure to attend eligibility meetings left the district with insufficient evidence. Based on the information available, the district’s determination that the student was not eligible for special education was reasonable.

The decision reflects that absenteeism, without accompanying indicators of disability, does not necessarily trigger child find obligations, and that eligibility determinations must account for whether academic difficulties stem from a disability or from a lack of instruction caused by repeated absences.

The student had autism, a speech impairment, and an intellectual disability, and communicated primarily through gestures, facial expressions, and a voice-assisted communication application. His behavior was disruptive and included hitting walls and furniture, jumping, spinning, elopement from school and the school bus, and significant toileting difficulties. Academically, the student functioned at approximately a kindergarten level while enrolled in fourth grade.

The record showed that the student had a consistent history of regression following interruptions in services. Between third and fourth grade, the district provided six weeks of half-day ESY services, although the parent requested additional support. When fourth grade began, the student exhibited significant regression in toileting and an escalation in elopement behaviors, including an incident in which he ran across a busy street and had to be restrained by bystanders. The parent filed a due process complaint seeking ESY services for all school breaks, a global positioning system (GPS) tracker, and an IEP goal addressing safe bus riding.

The hearing officer ruled in the parent’s favor and ordered full-summer ESY services and year-round access to a voice-assisted communication device. The district court affirmed. On appeal, the Fifth Circuit applied the factors articulated in Cypress-Fairbanks Independent School District v. Michael F., 118 F.3d 245 (5th Cir. 1997), focusing on whether the program was individualized, delivered in the least restrictive environment, coordinated among stakeholders, and likely to produce academic and nonacademic benefit. The court emphasized that the fourth factor—whether the student was likely to progress rather than regress—was critical.

The court of appeals held that the district court did not commit clear error in finding that the IEP was insufficiently individualized. Although the district implemented behavior strategies that had produced some progress in earlier grades, the student experienced severe regression after school breaks during third grade and again following the limited ESY program. The court described the regression as substantial and noted that the elopement behavior posed a grave safety risk. It concluded that the ESY services provided were not adequate to prevent regression or ensure meaningful benefit.

The Fifth Circuit also rejected the district’s argument that the lower courts improperly focused on remediating the student’s disability rather than measuring overall educational benefit. Distinguishing Klein Independent School District v. Hovem, 690 F.3d 390 (5th Cir. 2012), that emphasized academic advancement and district good-faith efforts, the court explained that academic progress does not outweigh evidence of persistent nonacademic regression. The record supported the conclusion that behavioral interventions were not working and that, despite the district’s laudable efforts, the student required more intensive and continuous services.

The decision reflects that an IEP must be sufficiently individualized to address both academic and nonacademic needs, that ESY determinations must account for documented patterns of regression, and that even earnest district efforts may deny FAPE where the program fails to prevent significant regression for a student with complex behavioral and safety needs.

The court described growing concerns with the careless use of generative artificial intelligence in legal filings, noting that impartial hearing officers and courts have increasingly encountered submissions containing irrelevant or nonexistent case law, inaccurate quotations, and arguments that lack coherence. Against that backdrop, the court found that the advocate’s filings in this case contained at least forty-two citations that did not exist or were otherwise improper.

In addition to the nonexistent citations, the court identified numerous violations of the local civil rules and the Federal Rules of Civil Procedure. The filings exceeded applicable page limits and contained what the court characterized as conclusory and unconnected statements that were difficult to understand and unsupported by relevant authority. The court identified the citation of nonexistent cases as the most troubling deficiency and described it as a likely consequence of reliance on generative AI, observing that other courts had flagged the same issue.

The court explained that if an attorney had engaged in similar conduct, sanctions could include monetary penalties, orders to pay the opposing party’s fees incurred in responding to the filings, entry of an adverse judgment, or removal of authorization to practice law. In this case, however, the court concluded that monetary sanctions would be ineffective because the advocate appeared to be judgment proof and unlikely to be deterred.

In a footnote, the court referenced a prior decision in which it had found that the same advocate engaged in a “scorched earth” strategy of filing numerous Individuals with Disabilities Education Act (IDEA) actions against Virginia school boards to impose litigation costs and pressure settlements. The court observed that the advocate continued to pursue the same strategy on behalf of the Skinger family and noted testimony at an April 2, 2025 evidentiary hearing in which a witness confirmed that the practice would continue.

Rather than impose sanctions, the court struck six pleadings that exceeded page limits, were not understandable even under the liberal standards afforded to pro se litigants, or contained misrepresentations of the law. It permitted the submission of replacement filings and issued a stern warning to the advocate and co-defendant against further improper conduct.

The decision reflects that reliance on generative artificial intelligence does not excuse violations of procedural rules or the submission of nonexistent legal authority.