In R.H. v. Board of Education Saugerties Central School District, 776 F. App’x 719, 74 IDELR 221 (2d Cir. July 2, 2019), the Second Circuit Court of Appeals continued its pattern of denying tuition reimbursement for unilateral parental placements when there is not a sufficient showing from the parents that the unilateral placement was appropriate. Although the decision is not precedential, litigants may cite it pursuant to Federal Rule of Appellate Procedure 32.1 and the Second Circuit’s Rule 32.1.1. More importantly, it provides a basis for prediction of what the court is likely to do in similar cases.

According to the district court, No.1:16-CV-551, 2018 WL 2304740, 72 IDELR 58 (N.D.N.Y. May 21, 2018), which the court affirmed, the case concerned a teenager diagnosed with autism spectrum disorder and anxiety. The parent grew dissatisfied with the student’s placement in the school district, where the student had been bullied and subjected to treatment that led to intense anxiety and a drastic decline in attendance. The parent placed the student at the Ridge School, which had been denied approval from the Commissioner of Education for special education placement. The school was for students with high functioning autism who did not learn satisfactorily in a traditional school environment. There were four students – two in ninth grade, and one in sixth grade – but the student was the only seventh grader. Instruction was in a group for all subjects, with no homework and the option to skip participation if a student declined to read a given subject. Materials were outdated, and students did not need to make up work they skipped. The school had two full-time teachers, and five part-time teachers. The student did not have a written education plan, behavior plan, or academic goals, nor a remedial program to address areas of deficiency. The student’s teacher, his developmental-behavioral pediatrician, and his parent all stated that the student made progress, based on their observations.

The Impartial Hearing Officer and the State Review Officer agreed that the school district failed to provide a free, appropriate public education in the school year when the parents removed the student. The IHO ruled that the student made educational progress at Ridge and the equities supported reimbursement, but the SRO vacated that part of the decision, reasoning that there was insufficient evidence that Ridge provided the student instruction specially designed to address his social and emotional needs, rather than merely providing the student advantages that might be preferred by the parents of any child. The district court agreed with the SRO and denied reimbursement, declaring that “there was scant evidence in the record that constituted ‘objective evidence’ of progress, which is preferable in this Circuit.” Id. at *7. The court cited an absence of report cards, progress notes, work samples, or standardized assessments. And although the student’s attendance improved, there was also evidence of regression, including an altercation and refusal to complete assignments.

The court of appeals issued a short opinion affirming the district court decision. The court said that increased attendance in and of itself did not show that the private program was specifically designed to meet the student’s individual needs. Moreover, said the court, “Although there was testimony that C.H. made some progress socially and emotionally, the record contained no evidence of test scores, grades, written behavioral plans, or other progress reports to support R.H.’s claim that C.H. made progress at Ridge.” 776 F. App’x at 721. The court also said that the SRO did not improperly fail to defer to the IHO’s credibility determinations. The problem was not credibility, according the court, so much as the courts’ need to defer to the SRO’s expertise in determining how much evidence is needed to reach an adequately supported decision.

A takeaway from the court of appeals decision is that objective evidence of educational progress is likely to be highly important in a tuition reimbursement case. Conclusory general opinions from private school staff and/or parents, even if credible, will probably not suffice. It might be noted that a hearing officer has the authority to ask questions to clarify or complete the record. This would be a good example of a situation where just asking a witness why s/he thought the student was making progress would be very helpful and appropriate. This approach could provide objective evidence of progress in the private placement or the lack of it and, therefore, provide a more solid factual and legal basis for a conclusion of law on whether the unilateral placement was appropriate.