Killoran v. Westhampton Beach School District, No. 20-CV-4763(JS)(SIL), 2022 WL 954851, 122 LRP 11347 (E.D.N.Y. Mar. 30, 2022), is a decision in one of a number of cases that parents filed pro se concerning the education of their son who has Down Syndrome. The district court denied the parents’ motion for partial summary judgment on their claim that the state review officer erred in refusing to award compensatory education in an SRO decision that otherwise ruled that the student was denied free, appropriate public education for the academic year 2019-20.
The SRO refused to award compensatory education on the ground that implementation of the pendency placement agreed to by the parents and the school district put the student in the same position he would have been but for the denial of FAPE under the IEP proposed by the school district. The pendency arrangement consisted of related services provided daily in the mornings at a district school and daily instruction by a special education teacher in the afternoons at home or in the local public library. The SRO noted that the student made progress on most of his IEP goals during the school year with those services and achieved several short-term objectives. Moreover, said the SRO, the parents did not specifically identify further compensatory education services needed to put the student in the position he would have been had FAPE been offered.
On the motion for summary judgment appealing the SRO’s denial of compensatory education, the court first rejected an exhaustion argument, reasoning that even though the request for review of the IHO decision may have been procedurally deficient under state regulations for failing to indicate the relief to be granted by the SRO, the SRO recognized that the initial due process complaint asked for compensatory education, and on appeal the parents had asked for reversal of the IHO decision, which ruled in favor of the district and denied all relief.
Turning to the merits of the compensatory education claim, the court reasoned that an FAPE violation does not automatically trigger an award of compensatory education, and that the SRO considered the substantive adequacy of the services furnished during stay-put as well as the settings in which they were provided. The court declared: “This Court agrees with SRO Bates’ finding that no compensatory education was required to compensate A.K. for the denial of [a] FAPE because any deficiencies he had suffered already had been mitigated through his pendency placement. Therefore, A.K. was in the ‘position [ ]he would have occupied had the [D]istrict complied with its obligations under the IDEA.’” 2022 WL 95485, at *8 (quoting M.M. v. New York City Dep’t of Educ., No. 15-CV-5846, 2017 WL 1194685, at *8 (S.D.N.Y. Mar. 30, 2017)). The court went on to state that the parents failed to provide evidence about what additional services would be required to make up for any deficiencies in the education provided during pendency. The judge emphasized that the purpose of compensatory education is not to punish the district.
The court’s decision helps fill out the development of the law regarding compensatory education, joining decisions such as Doe v. East Lyme Board of Education, 790 F.3d 440 (2d Cir. 2015) and Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005), both of which were cited in the opinion. Clearly, the nature, intensity, and effectiveness of the pendency services need close attention when relief is sought to make up for a denial of FAPE under an IEP that the district offered but did not implement because of stay-put.