12-2464-cv H.C., on behalf of M.C. v. Katonah-Lewisboro Union Free School District 

### 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 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2 24 thday of June two thousand thirteen. 3 4 PRESENT: D EBRA A NN L IVINGSTON , 5 GERARD E. L YNCH , 6 RAYMOND J. L OHIER , J R ., 7 Circuit Judges. 8 9 10 H.C., ON BEHALF OF M.C., J.C., ON BEHALF OF M.C., 11 Plaintiffs-Appellants , 12 13 -v- No. 12-2464-cv 14 15 KATONAH -LEWISBORO U NION F REE S CHOOL D ISTRICT , 16 17 Defendant-Appellee

. 18 19 20 P ETER D. H OFFMAN , Law Office of Peter D. Hoffman, 21 P.C., Katonah, NYfor Plaintiffs-Appellants

. 22 23 J OSEPH E. M ADSEN , Ingerman Smith, L.L.P., 24 Hauppauge, NY for Defendant-Appellee

. 25 26 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 27 DECREED that the judgment entered May 24, 2012 is AFFIRMED

. 28Plaintiffs-Appellants H.C. and J.C. (“Parents”), individually and on behalf of their child M.C. 1 (“M.C.”), appeal from a Memorandum Opinion and Or der of the United States District Court for the 2 Southern District of New York (Davison, M.J. ), entered May 24, 2012, granting summary judgment 3 to Defendant-Appellee Katonah-Lewisboro Union Free School District (“Katonah”) on Parents’ 4 claim for tuition reimbursement under the Individuals with Disabilities Education Act (“IDEA”), 5 20 U.S.C. § 1400 et seq . Parents sought review of the administrative decision by a State Review 6 Officer (“SRO”) denying Parents tuition reimburse ment for the 2008-2009 school year based on the 7 SRO’s determination that Katonah’s Individualized Education Plan (“IEP”) offered M.C. a free and 8 appropriate public education (“FAPE”). The SR O annulled the decision of the Impartial Hearing 9 Officer (“IHO”), who found that Katonah’s IEP failed to provide a FAPE to M.C. and ordered 10 Katonah to reimburse Parents for the 2008-2009 sc hool year at the Windw ard School – which the 11 IHO found to be an appropriate placement. On app eal, Parents argue principally that: (1) the district 12 court failed to apply the preponderance of the evidence standard in concluding that the 2008-2009 13 IEP was appropriate; (2) the district court improperly considered the retrospective testimony of 14 M.C.’s proposed second grade teacher; and (3) the district court abdicated its “gatekeeper” 15 responsibilities under Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993). We 16 assume the parties’ familiarity with the underlying facts, procedural history of the case, and issues 17 on appeal, which we reference only as necessary to explain our decision to affirm. 18 We review de novo a grant of summary judgment by the di strict court in an IDEA case. R.E. 19 v. N.Y.C. Dep’t of Educ. , 694 F.3d 167, 184 (2d Cir. 2012). In doing so, we recognize that “the role 20 of the federal courts in reviewing state educational decisions under the IDEA is circumscribed.” 21 Gagliardo v. Arlington Cent. Sch. Dist. , 489 F.3d 105, 112 (2d Cir. 2007) (internal quotation marks 22

2and citation omitted). “Although the district court must engage in an independent review of the 1 administrative record and make a determination ba sed on a preponderance of the evidence, . . . such 2 review ‘is by no means an invitation to the courts to substitute their own notions of sound 3 educational policy for those of the school authorities which they review.’” Cerra v. Pawling Cent. 4 Sch. Dist. , 427 F.3d 186, 191-92 (2d Cir. 2005 ) (internal quotation marks and citation omitted) 5 (quoting Bd. of Educ. v. Rowley , 458 U.S. 176, 206 (1982)). “We must give ‘due weight’ to the state 6 proceedings, mindful that we lack ‘the speciali zed knowledge and experience necessary to resolve 7 . . . questions of educational policy.’” R.E. , 694 F.3d at 189 (quoting Gagliardo , 489 F.3d at 113). 8 We “generally defer to the final decision of the state authorities, even where the reviewing authority 9 disagrees with the hearing officer,” but, if the SRO’s decision “is insufficiently reasoned to merit 10 . . . deference,” our Court may consider the IHO’s analysis. M.H. v. N.Y.C. Dep’t of Educ. , 685 F.3d 11 217, 241, 246 (2d Cir. 2012) (internal quotation marks omitted). 12 1. The 2008-2009 IEP Was Substantively Adequate and Calculated to Enable M.C. to 13 Make Progress 14 “In determining whether an IEP complies with the IDEA, courts make a two-part inquiry,” 15 first examining “whether there were procedural violations of the IDEA,” and then examining 16 “whether the IEP was substantively adequate, namely, whether it was reasonably calculated to 17 enable the child to receive educational benefits.” R.E. , 694 F.3d at 189-90 (internal quotation marks, 18 alteration, and citations omitted). Here, Parents do notassert procedural violations of the IDEA on 19 appeal but rather challenge the substantive ad equacy of the 2008-2009 IEP, arguing that the IEP: 20 (1) offered the same failed programs from previ ous years under which M.C. had failed to progress; 21 (2) failed to address M.C.’s individualized special education needs; and (3) did not offer an 22 appropriate FM system to enable M.C. to hear. 23

3The district court conducted an independent review of the administrative record and 1 concluded that the 2008-2009 IEP was reasonably calculated to enable M.C. to make progress. We 2 find no error in this conclusion. In affirming th e SRO’s decision, the district court independently 3 considered test results and witness testimony that confirmed that M.C. made progress during the 4 2006-2007 and 2007-2008 school years. Parents argue th at M.C.’s reading skills, and particularly 5 her cognitive fluency, demonstrate a lack of progre ss during this period, but several Katonah experts 6 testified to M.C.’s reading progress from 2006 to 2008, and the district court was entitled to rely on 7 Katonah’s witnesses, as was the SRO. See Grim v. Rhinebeck Cent. Sch. Dist. , 346 F.3d 377, 383 8 (2d Cir. 2003) (reversing a district court that “i mpermissibly chose between the views of conflicting 9 experts on a controversial issue of educational policy



### —effective methods of educating dyslexic 10
students



### —in direct contradiction of the opinions of st ate administrative officers who had heard the 11 same evidence”). To the extent that Parents argue that the gap between M.C. and her peers was 12 growing in terms of reading ability, moreover, “a ch ild’s academic progress must be viewed in light 13 of the limitations imposed by the child’s disability.” Mrs. B. ex rel. M.M. v. Milford Bd. of Educ. , 14 103 F.3d 1114, 1121 (2d Cir. 1997). We agree with the district court’s conclusion that the 2008- 15 2009 IEP was reasonably calculated to enable M.C. to continue making progress at Katonah. 16 Relying on its earlier conclusion that M.C. made pr ogress in previous years, the district court 17 also rejected Parents’ arguments that M.C.’s special education needs were not met in the 2008-2009 18 IEP. In particular, the court noted that M.C. ’s second-grade IEP provided for resource room use, 19 occupational therapy, and reading intervention, and that “even if this program was similar to the 20 previous years’ IEPs, those IEPs enabled M.C. to receive meaningful educational benefits and make 21 progress.” For the reasons stated above, we agree with the district court’s conclusion based on the 22 preponderance of the evidence. 23

4Finally, considering Parents’ arguments that the 2008-2009 IEP inadequately addressed 1 M.C.’s needs for assistive technology because it speci fied use of the “Radium” broadcast FM system 2 as opposed to the “Phonak” personal system, the district court concluded th at Katonah did not fail 3 to provide a FAPE where its IEP provided for a different assistive technology than the model 4 preferred by Parents’ audiologist, particularly wh ere Parents offered no evidence to demonstrate the 5 inadequacy of the Radium system. We agree with the district court. The IDEA does not require that 6 an IEP furnish “every special service necessary to maximize each handicapped child’s potential,” 7 Rowley , 458 U.S. at 199, and a school di strict does not fail to provide a child with a FAPE simply 8 because it employs one assistive technology over another, so long as the technology employed is 9 reasonably calculated to permit the child to receive educational benefits, see Sherman v. 10 Mamaroneck Union Free Sch. Dist. , 340 F.3d 87, 90, 94 (2d Cir. 2003) (holding that a school 11 district did not fail to provide a child with a FA PE when it denied the assistive technology preferred 12 by the family in favor of a different technology reasonably calculated to permit educational benefit). 13 We cannot conclude on this record that the district court erred in finding that the Radium FM 14 broadcast system satisfied this criterion. 15 2. Retrospective Testimony Did Not Materially Alter the 2008-2009 IEP 16 Parents also argue on appeal that both the district court and the SRO erred in relying on the 17 retrospective testimony of M.C.’s proposed s econd-grade teacher from Katonah, who was not 18 present at the May 2008 meetings discussing th e 2008-2009 IEP and was not identified within the 19 IEP as M.C.’s intended teacher. Our Court clarified in R.E. v. New York City Department of 20 Education that “an IEP must be evaluated prospectively as of the time it was created,” and therefore 21 “[r]etrospective evidence that materially alters the IEP is not permissible.” 694 F.3d at 188. We 22

5note that although the SRO considered the testimony of Kristen Colsey—the proposed second grade 1 teacher—the district court did not rely on her testimony to affirm the SRO’s conclusion that the 2 2008-2009 IEP was appropriate. Moreover, we agree w ith the district court and with the SRO that 3 the 2008-2009 IEP was appropriate, based on our inde pendent review of the record (and without 4 considering Colsey’s testimony). Accordingly, we need not reach the issue whether the SRO 5 improperly used retrospective evidence in reaching its conclusion. See id. at 195 (concluding for 6 one of the three cases at issue that the SRO inappropriately used retrospective evidence but 7 nevertheless agreeing with the SRO’s conclusion about the IEP’s substantive adequacy based on 8 other evidence in the record). 9 3. The Daubert Gatekeeper Requirement Is Not Applicable 10 Finally, Parents argue that the district court abdicated its gatekeeper role under Daubert v. 11 Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 597 (1993), which requi res a trial judge to ensure 12 that an expert’s testimony rests on a reliable foundation and is relevant to the task at issue. Whether 13 Daubert applies to IDEA hearings before state administrative agencies is highly questionable, see 14 Richardson v. Perales , 402 U.S. 389, 400 (1971) (holding that strict rules of evidence do not apply 15 to social security hearings “so as to bar the admission of evidence otherwise pertinent”), but we need 16 not reach that issue. The district court did not receive any evid ence apart from the administrative 17 record developed at the agency and so could not be expected to be a “gatekeeper.” The district court 18 instead properly reviewed the evidence developed before the administrative agency, engaging in an 19 independent review of the record, and it issu ed its decision based upon a preponderance of that 20 evidence, as required by 20 U.S.C. § 1415(i)(2)(C). 21

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6Because we agree with the district court’s c onclusion that Katonah offered M.C. a FAPE for 1 the 2008-2009 school year, we do not reach the question whether Parents demonstrated that they are 2 entitled to reimbursement because the Windward School was an appropriate placement and because 3 equitable considerations support their claim. 4 We have considered all of Parents’ remaining arguments and find them to be without merit. 5 For the foregoing reasons, the judgment of the district court is hereby AFFIRMED . We DENY as 6 moot Katonah’s motion to strike material from Parents’ reply brief and from the appendix. 7

FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk 9
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