14-1405
R.B. v. N.Y.C. Dep’t of Educ.

                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 19th day of March, two thousand fifteen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         JOHN M. WALKER, JR.,
         DENNY CHIN,
                     Circuit Judges.
________________________________________________

R.B., individually and on behalf of D.B., M.L.B.,
individually and on behalf of D.B.,

                             Plaintiffs-Appellants,

                             v.                                 No. 14-1405-cv

NEW YORK CITY DEPARTMENT OF EDUCATION,

                     Defendant-Appellee.
________________________________________________

For Plaintiffs-Appellants:                  GARY S. MAYERSON (Maria C. McGinley, on the brief),
                                            Mayerson & Associates, New York, NY.

For Defendant-Appellee:                     JANET L. ZALEON for Zachary W. Carter, Corporation
                                            Counsel of the City of New York, New York, NY.
       Appeal from the United States District Court for the Southern District of New York
(Nathan, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Plaintiffs-Appellants R.B. and M.L.B., the parents of D.B., a child diagnosed with

autism, appeal from a March 28, 2014 judgment following a March 26, 2014 order (Nathan, J.),

which granted summary judgment to the defendant on the parents’ claim for private-school

tuition reimbursement under the Individuals with Disabilities Education Act (“IDEA”), 20

U.S.C. §§ 1400–1482. The district court order reviewed an October 17, 2012 decision of a State

Review Officer (the “SRO”), which itself reviewed a February 28, 2012 decision of an Impartial

Hearing Officer (“IHO”) who first heard the parents’ claim that their son’s individualized

education program (“IEP”) was neither procedurally nor substantively appropriate. We assume

the parties’ familiarity with the underlying facts, procedural history, and the issues on appeal.

       Congress enacted the IDEA “to ensure that all children with disabilities have available to

them a free appropriate public education that emphasizes special education and related services

designed to meet their unique needs.” 20 U.S.C. § 1400(d)(1)(A). A school district achieves

compliance with the requirement of providing a free appropriate public education to its special-

needs students through an annual IEP that is developed in compliance with the IDEA’s

procedural requirements and is substantively “reasonably calculated to enable the child to

receive educational benefits.” Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester

Cnty. v. Rowley, 458 U.S. 176, 207 (1982). Public school districts must provide a “basic floor of

opportunity” for receiving an education. Id. at 200. “What the statute guarantees is an

appropriate education, not one that provides everything that might be thought desirable by loving

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parents.” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998) (internal

quotation marks omitted). The adequacy of an IEP is evaluated in two steps. “First, we examine

whether the state has complied with the procedures set forth in the IDEA. Second, we consider

whether the proposed IEP is substantively appropriate in that it is reasonably calculated to enable

the child to receive educational benefits.” T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist.,

554 F.3d 247, 252 (2d Cir. 2009) (per curiam) (internal quotation marks and citation omitted).

        We review de novo a district court’s grant of summary judgment, which, in an IDEA

case, “involves more than looking into disputed issues of fact; rather, it is a pragmatic procedural

mechanism for reviewing administrative decisions.” R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167,

184 (2d Cir. 2012) (internal quotation marks omitted). We recognize that “[t]he role of the

federal courts in reviewing state educational decisions under the IDEA is circumscribed.” T.P.,

554 F.3d at 252 (internal quotation marks omitted). The IDEA requires a district court to “base

its decision on the preponderance of the evidence, [but the Court] must give due weight to the

administrative proceedings, mindful that the judiciary generally lacks the specialized knowledge

and experience necessary to resolve persistent and difficult questions of educational policy.” Id.

(internal quotation marks, brackets, and citations omitted). Accordingly, “[t]he responsibility for

determining whether a challenged IEP will provide a child with an appropriate public education

rests in the first instance with administrative hearing and review officers,” and we defer to their

expertise on education policy. Walczak, 142 F.3d at 129. “Deference is particularly appropriate

when the state officer’s review ‘has been thorough and careful,’ but still we do not ‘simply

rubber stamp administrative decisions.’ ” R.E., 694 F.3d at 184 (quoting Walczak, 142 F.3d at

129).


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        First, we agree with the district court and the SRO that the IEP’s development was

procedurally adequate, and that any inadequacy did not “impede[] the child’s right to a free

appropriate public education[,] significantly impede[] the parents’ opportunity to participate in

the decisionmaking process regarding the provision of a free appropriate public education to the

parents’ child[,] or cause[] a deprivation of educational benefits.” 20 U.S.C. § 1415(f)(3)(E)(ii).

The parents contend that, in developing the IEP, the local committee on special education should

have conducted a functional behavior analysis and developed a behavior intervention plan based

on that analysis. Although they raised this argument in their initial filing, the parents never

pursued it before the IHO, SRO, or district court, and, as a result of that decision, no

administrative record was made from which we might develop a reasoned view of the merits.

Because this “is precisely the type of issue upon which the IDEA requires deference to the

expertise of the administrative officers,” A.C. ex rel. M.C. v. Bd. of Educ. of the Chappaqua

Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009) (internal quotation marks omitted), we decline

to consider it in the first instance.

        The parents further contend that they were denied meaningful participation in the

selection of the school that their son would attend. This claim is also waived because the parents

did not include it in their initial filing with the school district. See R.E., 694 F.3d at 187 n.4. But

even if we were to consider this contention, it lacks merit because parents are guaranteed only

the opportunity to participate in the decision about a child’s “educational placement,” see 20

U.S.C. § 1414(e), which “refers to the general educational program—such as the classes,

individualized attention and additional services a child will receive—rather than the ‘bricks and

mortar’ of the specific school,” T.Y. v. N.Y.C. Dep’t of Educ., 584 F.3d 412, 419 (2d Cir. 2009);


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see also Assistance to States for the Education of Children with Disabilities, 64 Fed. Reg. 12406,

12594 (Mar. 12, 1999).

        The development of the IEP was not unblemished. We agree with the district court and

the SRO that the IEP should have provided for parent counseling and training. But “because

school districts are required by [N.Y. Comp. Codes R. & Regs., tit. 8,] section 200.13(d) to

provide parent counseling, they remain accountable for their failure to do so no matter the

contents of the IEP,” R.E., 694 F.3d at 191, so this omission, although a procedural violation, did

not deny the student a free appropriate public education. See 20 U.S.C. § 1415(f)(3)(E)(ii).

        Second, we agree with the district court and SRO that the IEP was substantively

adequate. The parents object to the IEP’s recommended placement of their son in a classroom

with six students, one teacher, and one paraprofessional (6:1:1), preferring instead the classroom

ratio he had in private school of eight students, one teacher, and three paraprofessionals (8:1:3).

At the February 9, 2011 meeting of the local committee on special education at which a draft IEP

was shared with and amended in response to feedback from the student’s mother, she expressed

concern that the 6:1:1 placement would be insufficiently supportive of her son, who had, in the

8:1:3 classroom, a ratio of two students to each adult. Likewise, in their initial filing, the parents

contended that the 6:1:1 placement recommendation failed to provide their son with the “smaller,

more supportive program” that he needed. In response to this concern, the IEP was amended to

provide for a full-time transitional paraprofessional to help the student transition from private to

public school by maintaining the 2:1 student-to-adult classroom ratio that he had before.

        On appeal, the parents attack this placement not as insufficiently supportive but as too

supportive, a crutch that vitiates their son’s right to be educated in the least restrictive


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environment. See 20 U.S.C. § 1412(a)(5)(A). This argument is both waived and unpersuasive.

The requirement that students be educated in the least restrictive environment applies to the type

of classroom setting, not the level of additional support a student receives within a placement,

see 34 C.F.R. § 300.114, with the goal of integrating children with disabilities into the same

classrooms as children without disabilities. Here, the parents agreed with their son’s

recommended placement in a special class within a special school, and the additional support

provided by the 1:1 paraprofessional did not deny their son the least restrictive environment.

       Finally, we join the district court and SRO in declining to entertain the parents’

speculation that the “bricks-and-mortar” institution, T.Y., 584 F.3d at 419 (hyphens supplied), to

which their son was assigned would have been unable to implement his IEP. See R.E., 694 F.3d

at 195 (“Speculation that the school district will not adequately adhere to the IEP is not an

appropriate basis for unilateral placement.”).

       We have considered all of the parents’ remaining arguments and find them to be without

merit. For the reasons stated herein, the judgment of the district court is AFFIRMED.

                                                  FOR THE COURT:
                                                  CATHERINE O’HAGAN WOLFE, CLERK




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