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Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist.

United States Court of Appeals, Second Circuit

December 3, 2014

STEWART HARDISON and KATHERINE HARDISON on behalf of their daughter, A.N.H., a student with a disability, Appellees, Cross-Appellants,

Argued January 16, 2014

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[Copyrighted Material Omitted]

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On appeal from a judgment of the United States District Court for the Northern District of New York (Suddaby, J.), reversing in part a State Review Officer's determination to deny reimbursement for private schooling under the Individuals with Disabilities Education Act. Because we hold that the district court should have shown greater deference to the determinations of the State Review Officer, we REVERSE the judgment by the district court to the extent that it granted IDEA reimbursement.

CRYSTAL M. DOODY, ESQ., Legal Services of Central New York, Syracuse, New York, for Stewart Hardison and Katherine Hardison.

KENNETH S. RITZENBERG, ESQ., Young, Sommer, Ward, Ritzenberg, Baker and Moore LLC, Albany, New York for Board of Education of the Oneonta City School District.

Before: STRAUB, HALL, and LIVINGSTON, Circuit Judges.


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Hall, J.

This Individuals with Disabilities Education Act (" IDEA" ) case[1] centers on the

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degree of deference to be afforded to a State Review Officer's (" SRO" ) determination that parents seeking reimbursement for the unilateral placement of their emotionally disabled child in a private school had not placed sufficient evidence on the record to establish that their placement was appropriate.


A. Statutory and Regulatory Background

Under the IDEA, states receiving federal funds must provide " all children with disabilities" a " free appropriate public education," (" FAPE" ). 20 U.S.C. § 1412(a)(1)(A). " A FAPE consists of special education and related services tailored to meet the unique needs of a particular child, which are reasonably calculated to enable the child to receive educational benefits, and provided in conformity with an individualized education program, or IEP." Reyes ex rel R.P. v. N.Y.C. Dep't of Educ., 760 F.3d 211, 214 (2d Cir. 2014) (internal quotation marks and citations omitted). School districts are required by the IDEA to prepare an IEP for disabled students annually, and those IEPs " must include the child's present levels of academic achievement and functional performance, goals and objectives for the child, and the special education and related services to be provided to the child so that he or she can advance toward attaining those goals and objectives." Id. (citing 20 U.S.C. § 1414(d)).

New York law provides for Committees on Special Education (" CSEs" ) that are responsible for creating IEPs. Id. at 214-15 (citing N.Y. Educ. Law § 4402(1)(b)(1)). If the recommendation of a CSE is unacceptable, or no recommendation is made or effectuated, the parents of the disabled child may challenge the CSE's determination by filing what is known as a " due process complaint." N.Y. Educ. Law § 4404(1). Filing the complaint triggers an administrative procedure by which the board of education appoints an Independent Hearing Officer (" IHO" ) who conducts a formal hearing and fact-finding. Either party may appeal an IHO's decision to an SRO. N.Y. Educ. Law § 4404(2). The SRO's decision may be appealed via civil suit in New York State Supreme Court or federal district court. N.Y. Educ. Law § 4404(3); 20 U.S.C. § 1415(i)(2)(A).

Parents who disagree with a CSE's determination and believe that a FAPE is not being provided to their child " may unilaterally enroll the child in a private school and seek tuition reimbursement from the school district." Reyes, 760 F.3d at 215 (citing 20 U.S.C. § 1412(a)(10)(C)(ii)). Reimbursement is not automatic and " will be granted only if (1) the proposed IEP failed to provide the student with an appropriate public education; (2) the parent's private placement was appropriate to the child's needs; and (3) equitable considerations support the parent's claim." Id. As with other challenges to a CSE's recommendation, parents must file a due process complaint and

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participate in the administrative process to receive reimbursement. Id. (citing 20 U.S.C. § 1415(b)(6), (f); N.Y. Educ. Law § 4404(1)). At a hearing before the IHO in which the parents are seeking reimbursement, New York law requires that the school district prove that its " proposed IEP provided the child a FAPE," but the parents must prove " the appropriateness of the private placement." Id. (citing N.Y. Educ. Law § 4404(1)(c)).

B. Factual and Procedural Background

Through the 2006-2007 School Year

In 1992, the Hardisons adopted the three-day old A.N.H. While A.N.H. always had some oppositional issues with her parents and briefly saw two mental health professionals for depression during middle school, she progressed successfully in a regular education program in the Oneonta School District (the " District" ) until school year 2006-2007.

Starting in the fall of 2006, during her ninth-grade year at Oneonta High School, A.N.H.'s academic performance began to decline, and she began to exhibit problematic behaviors. Although she remained in the regular program, A.N.H. began receiving additional remedial and support services after her parents met with District staff about her difficulties. In November 2006, A.N.H. was tentatively diagnosed with bipolar disorder and was prescribed medications for " depression" and " mood stability" by a psychiatric nurse practitioner. Following an arrest for shoplifting in January of 2007, A.N.H. was placed in a diversion program, assigned a probation officer, and required to participate in mental health counseling.

A.N.H.'s District guidance counselor and Mrs. Hardison requested that the school engage in an evaluation of A.N.H. designed to gather information on why she was having difficulty at school. The evaluation request identified A.N.H. as having difficulty where she " very often blanks out or draws a blank" when trying to remember vocabulary, having a " hard time processing steps of information" when following instructions, drifting when attempting to pay attention to " demonstrations or media information," blanking when answering out loud, only completing homework assignments half of the time, " almost never" being prepared for class, having a " totally disorganized" notebook, being " possib[ly] withdrawn," being " very immature socially," " need[ing] prodding" to do work, not taking pride in her work, and lacking motivation. Less than two months later, after it became clear that A.N.H. would fail nearly all of her classes that year, her parents removed A.N.H. from school, sending her to live with her grandmother (a retired teacher) until the end of June 2007. A.N.H. failed all but two of her 2006-2007 classes and received 25 incident discipline reports for unexcused absences from class, tardiness, and disruptive class behavior that year.

In late June and early July 2007, as part of her diversion program, A.N.H. was evaluated by a psychologist. In a report that was not sent to the District, the psychologist recommended that A.N.H. be required to attend family counseling, that she receive treatment from a therapist, and that she be further evaluated. The report did not identify her as learning disabled or recommend a CSE referral.

The 2007-2008 School Year

Nominally in the tenth grade, A.N.H. repeated ninth-grade courses at Oneonta High School until September 2007, when she was required by the Otsego Family Court to undergo a thirty-day psychiatric evaluation and a ten-day hospitalization at Four Winds Psychiatric Facility (" Four Winds" ). Four Winds notified the District

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of the evaluation, providing the District with a " School Services Discharge Report" and the Hardisons with a " Discharge Summary." The School Services Discharge Report noted that A.N.H. " should have little difficulty reentering the academic program [and w]ill continue to benefit from the emotional and academic supports present in her academic program." The report " suggested that the guidance counselor schedule weekly meetings for the first three to four weeks after [A.N.H.] returns to school and then evaluate the number of meetings that would be beneficial to her for the next prescribed period of time," but it did not suggest the need for a CSE-referral.

Less than a month after her October 3, 2007 return to Oneonta High School, however, A.N.H. ran away and attempted suicide, resulting in hospitalization followed by a twelve-day admission to Brattleboro Retreat (" Brattleboro" ). At Brattleboro, A.N.H. was diagnosed with an unspecified mood disorder and given a " guarded" prognosis. Brattleboro documents indicated that A.N.H. would receive " individual therapy" and, together with her parents, would " meet with school staff to develop a plan for reentry." The Hardisons notified the District's attendance office of A.N.H.'s absence, but the discharge summary prepared by Brattleboro--indicating the diagnosis and her history of self-injury, running away, and arguing with her parents--was not given to the District until January 8, 2008. An evaluation was prepared by a Brattleboro psychologist, but it was not provided to the District until the appeals process culminating in this litigation was underway.

Following discharge from Brattleboro, A.N.H. began going to the District's Bugbee Program (" Bugbee" ) by agreement between her parents and the District. There, she was tutored between two and four hours a day in math, English, global, and social studies. A.N.H. was also offered programming at Oneonta High School during this time. While she was still often unprepared for class, A.N.H.'s grades improved ...

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