UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

----------------------------------------------------------------------- x 

In the Matter of the Application of C.B. on behalf of Z.G. 

her minor child, 

Plaintiff,

-againstDEPARTMENT OF EDUCATION OF THE CITY OF 

NEW YORK, 

Defendant.

----------------------------------------------------------------------- x 

07 CV 3419 (AKH) (THK) 

NEW YORK CITY DEPARTMENT OF 

EDUCATION’S MEMORANDUM OF LAW IN 

OPPOSITION TO PLAINTIFF’S MOTION 

FOR SUMMARY JUDGMENT AND IN 

FURTHER SUPPORT OF ITS MOTION FOR 

SUMMARY JUDGMENT 

PRELIMINARY STATEMENT

Plaintiff, the parent of Z.G. (“the Student”), brings this action to appeal an 

administrative decision by the New York State Department of Education Office of State Review. 

Plaintiff seeks reimbursement for the cost of tuition at the Dalton School (“Dalton”), a private 

school at which she had unilaterally placed the Student for the 2005-2006 school year. The State 

Review Officer (“SRO”) denied plaintiff reimbursement. At the Court’s direction, plaintiff and 

defendant New York City Department of Education (“DOE”) submitted simultaneous motions 

for summary judgment to this Court on October 5, 2007. DOE submits this memorandum of law 

in opposition to plaintiff’s motion for summary judgment and in further support of its motion for 

summary judgment. 

Case 1:07-cv-03419-AKH Document 19 Filed 11/02/2007 Page 1 of 12
In plaintiff’s memorandum of law in support of her motion for summary judgment 

(“Plaintiff’s Memorandum”), plaintiff argues that she met her burden and demonstrated that she 

should be fully reimbursed for the cost of the Student’s tuition at Dalton. She argues, among 

other things, that this Court should ignore the decision of the SRO, which denied plaintiff’s 

request for reimbursement, and consider only the decision of the Impartial Hearing Officer 

(“IHO”), which granted plaintiff’s request. Plaintiff also argues that DOE’s failure to classify 

the Student as “Other Health Impaired” constituted a denial of a free and appropriate public 

education (“FAPE”). Finally, plaintiff briefly argues that Dalton was an appropriate placement 

for the Student, and that equitable considerations weigh in favor of an award of tuition 

reimbursement. 

As discussed more fully below, these arguments are not supported by either the 

law or the facts of this case. The SRO’s decision was well-reasoned, thorough, and consistent 

with the credibility determinations made by the IHO. It should be considered by this Court, and 

be given due weight. Further, the Committee on Special Education (“CSE”) conducted a proper 

evaluation of the Student and reached the only conclusion under the applicable law that the 

record supports – that the Student is not disabled under the Individuals with Disabilities 

Education Act (“IDEA”). Even if the Student is disabled under the act, Dalton, a private, general 

education school, does not provide an appropriate special education program for the Student. 

Finally, equitable considerations do not support an award of tuition reimbursement, as plaintiff 

was committed to keeping the Student at Dalton even as she contacted the CSE. 

This Court should award summary judgment to DOE. Plaintiff has failed to 

establish that the Student should have been classified as a child with a disability. Plaintiff also 

has failed to establish that Dalton was an appropriate placement for the Student. Finally, the 

- 2 - 

Case 1:07-cv-03419-AKH Document 19 Filed 11/02/2007 Page 2 of 12
equities do not favor an award of tuition reimbursement in this matter. Accordingly, DOE is 

entitled to judgment as a matter of law, and its motion should be granted. 

ARGUMENT

POINT I 

THIS COURT SHOULD GIVE DEFERENCE 

TO THE SRO’S DECISION IN REVIEWING 

PLAINTIFF’S CLAIMS 

The Supreme Court and the Second Circuit have stated that the IDEA envisions 

limited judicial review of state administrative proceedings. See Bd. of Educ. of Hendrick Hudson 

Central Sch. Dist. v. Rowley, 458 U.S. 176, 205-206 (1982); Walczak v. Florida Union Free Sch. 

Dist., 142 F.3d 119, 129 (2d Cir. 1998). Federal courts should give “due weight to state 

administrative proceedings,” M.S. v Yonkers Bd. of Educ., 231 F.3d 96, 102 (2d Cir. 2000), cert. 

denied, 532 U.S. 942 (2001), and should defer to the expertise of state and local educational 

agencies on matters of educational policy. Muller v. Comm. on Special Educ., 145 F. 3d 95, 101 

(2d Cir. 1998) (citing Rowley, 458 U.S. at 207). When there is disagreement among state 

administrative officers, as when the SRO reverses the decision of an IHO, federal courts must 

still defer to state educational authorities. Karl v. Bd. of Educ. of Geneseo Cent. Sch. Dist., 736 

F.2d 873, 877 (2d. Cir. 1984). “There is no principle of administrative law which, absent a 

disagreement between a hearing officer and reviewing agency over demeanor evidence, obviates 

the need for deference to an agency's final decision where such deference. . . is otherwise 

appropriate.” Id. 

Here, plaintiff argues that deference to the SRO decision is not appropriate 

because it is not supported by the evidence and is not rational. Plaintiffs’ Memorandum at 15. 

Plaintiff’s efforts to discredit the SRO and focus the Court’s attention solely on the IHO decision 

- 3 - 

Case 1:07-cv-03419-AKH Document 19 Filed 11/02/2007 Page 3 of 12
must fail. The SRO’s decision was thorough, well-reasoned, and demonstrates a careful analysis 

of the record. It is supported by the evidence in that the record does not demonstrate that the 

Student was adversely affected by her bipolar disorder, or that she needed special education 

services. See Point II, below; see also Department of Education’s Memorandum of Law in 

Support of its Motion for Summary Judgment, dated October 5, 2007 (“DOE’s Memorandum”) 

at 10-15. 

Plaintiff also argues that this Court should give weight only to the IHO decision 

because the IHO had the advantage of hearing the testimonial evidence at the impartial hearing. 

Plaintiff’s Memorandum at 20-22. However, the SRO did not reach his decision by disputing the 

IHO’s findings of credibility, but rather looked closely at the evidence that was presented to the 

CSE and concluding that it supported the CSE’s determination that the Student could not 

properly be classified as disabled under the IDEA. At no time does the SRO disagree with the 

IHO’s findings on credibility or discredit the witnesses who testified on plaintiff’s behalf – 

instead, he simply finds that their testimony was not sufficient to conclude the Student was 

disabled. See Exhibit (“Exh.”) SRO 7 at 7. The only credibility determination the SRO made 

was to credit DOE testimony that certain accommodations could be made available in a public 

school setting. Id. This also is not inconsistent with the IHO’s findings, as the IHO was silent 

about that testimony. See Exh. SRO 1 at 2-9. Thus, there is no basis to disregard the findings of 

the SRO, as there was no disagreement on credibility or “demeanor” between the SRO and the 

IHO. See Karl, 736 F.2d at 877. Thus, the SRO’s decision should be given weight as the “final 

decision of the state authorities.” Id. 

Plaintiff also argues that the SRO’s decision was inconsistent in that the SRO held 

that the Student does not require special education services while also observing that the program 

- 4 - 

Case 1:07-cv-03419-AKH Document 19 Filed 11/02/2007 Page 4 of 12
provided by Dalton could be replicated in a public school environment. Plaintiff’s Memorandum 

at 23. Contrary to this assertion, the SRO’s decision was entirely consistent. In making her 

argument, plaintiff misunderstands the SRO’s decision. While the SRO found that there was 

insufficient evidence to conclude the Student’s educational performance was adversely affected 

by her bipolar disorder, Exh. SRO 7 at 6-7, he made no finding regarding the appropriateness of 

Dalton. See id. at 7. The SRO also did not find that the services provided by Dalton were 

necessary for the Student. See id. Rather, he found that because a public school, general 

education program could provide the same services that plaintiff’s witnesses testified were 

necessary, plaintiff had not demonstrated that the Student required special education services. 

Finally, plaintiff takes a novel view of State regulations and concludes that Part 

279 of Title 8 of the New York Code of Rules and Regulations prohibit this Court from giving 

any weight to the SRO’s decision. Plaintiff’s Memorandum at 15. Specifically, Section 279.12 

states: 

The decision of the State Review Officer shall be 

based solely upon the record before the State 

Review Officer and shall be final, unless an 

aggrieved party seeks judicial review. The decision 

of the State Review Officer shall be binding upon 

the parties and the State Education Department with 

respect to the provision of special education to the 

student with a disability involved, but shall not 

constitute binding precedent in any judicial action 

or proceeding or administrative appeal in any forum 

whatsoever. 

8 NYCRR § 279.12(a). Plaintiff argues that the word “whatsoever” at the end of the second 

sentence modifies the phrase “shall not constitute binding precedent” and that because the SRO’s 

decision can have no precedential value “whatsoever,” then it should receive no weight from this 

Court. Plaintiff’s Memorandum at 15. A more logical reading of the provision, however, would 

be that “whatsoever” modifies the word “forum,” which directly precedes it. Read properly, Part 

- 5 - 

Case 1:07-cv-03419-AKH Document 19 Filed 11/02/2007 Page 5 of 12
279 thus instructs that the SRO’s decision is not binding precedent in whatever forum a judicial 

action or proceeding or administrative appeal is brought. 

Moreover, plaintiff’s construction of the regulation is simply contrary to the law. 

See Karl, 736 F.2d 873, 877. The SRO’s decision may inform this Court’s decision, and the 

Court is expected to give it deference on matters of educational policy. See Rowley, 458 U.S. at 

206; M.S., 231 F.3d at 102. On matters of statutory interpretation, however (for example, on 

whether the Student should be classified as disabled under the IDEA), this Court is in as good a 

position to make that determination as the state administrative officials, including the IHO. See 

Muller, 145 F.3d at 102 (holding district court could reach conclusion about student’s statutory 

eligibility de novo and was not required to give deference to either the IHO or the SRO in that 

inquiry). 1

 

It is clear that plaintiff seeks to distract the Court from the SRO’s decision simply 

because it was unfavorable to her. Plaintiff’s spurious arguments should be rejected. The 

SRO’s decision should be considered by this Court, and be given due weight as the final decision 

of the State authorities. In areas where the Court need not defer to the SRO decision, it should 

still guide this Court’s determination. 

 

1

 Plaintiff also suggests that the SRO decision should be given no weight because the SRO himself is biased. To 

support this contention, plaintiff offers statistics which suggest a majority of recent SRO decisions were decided in 

favor of school districts, and an article from the New York Sun. Neither should be considered by this Court. Bare 

statistics, without more, offer nothing of value to this Court’s consideration of the present matter, as the facts of 

those cases are unknown, are not apparently relevant to the present case, and do not take into account factors like 

how many appeals are taken by parents when they lose at the IHO level, compared with school districts. The New 

York Sun article should not be considered because it consists largely of conclusory opinions, which are not 

admissible. Further, the article is hearsay. Federal Rule of Evidence 802; Holmes v. Gaynor, 313 F. Supp.2d 345, 

358, n.l (S.D.N.Y. 2004); McAllister v. New York City Police Department, 49 F. Supp.2d 688, 705-706, n.12 

(S.D.N.Y. 1999). 

- 6 - 

Case 1:07-cv-03419-AKH Document 19 Filed 11/02/2007 Page 6 of 12
POINT II 

THE CSE CONDUCTED AN APPROPRIATE 

REVIEW OF THE STUDENT AND 

PROPERLY CLASSIFIED HER AS NONHANDICAPPED 

Plaintiff has not met her burden of demonstrating that DOE’s refusal to classify 

the Student as a student with a disability was inappropriate. The Student did not meet the criteria 

for any of the potential classifications that may have applied to her, and thus the CSE made a 

proper determination. Plaintiff does not convincingly argue otherwise, and the SRO’s decision 

upholding the CSE determination should be affirmed. 

First, there is no evidence to support plaintiff’s contention that the CSE had 

predetermined how to classify the Student prior to the CSE meeting on January 23, 2006, 

Plaintiff’s Memorandum at 16, and neither the IHO nor the SRO found any procedural flaws in 

the CSE process. See Exh. SRO 1 at 6; Exh. SRO 7 at 7. Plaintiff contends that the CSE did 

not take her input, nor that of her witnesses, into account at the CSE meeting, and this was a 

procedural flaw constituting a denial of FAPE. Plaintiff’s Memorandum at 17. As the IHO 

observed, however, this contention is contradicted by plaintiff’s own witnesses, one of whom 

specifically testified that she was given the opportunity to discuss her interactions with the 

Student at the CSE meeting and the other of whom gave no indication that she was denied such 

an opportunity. Exh. SRO 1 at 6. DOE witness Giselle Jordan, who chaired the CSE meeting, 

testified that everyone, including the plaintiff, participated fully in the CSE meeting. Exh. SRO 

3 at 234. Further, Ms. Jordan testified that the committee’s conclusions were fully explained to 

the plaintiff. Id. at 235. Additionally, most of the particular information that plaintiff contends 

the DOE failed to elicit from her all appears elsewhere in the record that was before the CSE. 

See Plaintiff’s Memorandum at 17; see also Exh. 5 at 1-2 (describing the Student’s experience 

- 7 - 

Case 1:07-cv-03419-AKH Document 19 Filed 11/02/2007 Page 7 of 12
in public school, the reasons for her transfer to Dalton, and the reasons she had been seeing a 

therapist); Exh. 9 at 1 (explaining the Student’s educational and emotional needs, and why she 

was seeing a therapist); Exh. 10 at 1-3, 10 (detailing the Student’s public school experiences, the 

reasons for her transfer to Dalton, and the reasons she had been seeing a therapist). Thus, there 

is no evidence of any procedural flaw in the CSE process. 

Plaintiff also argues that the DOE is only speculating that a general education 

program would be appropriate for the Student, and could provide her with all necessary services. 

Plaintiff’s Memorandum at 19-20. Plaintiff misunderstands the DOE’s position. DOE maintains 

that plaintiff has not established that the Student requires any services. Thus, even if the Court 

were to find that the services provided by Dalton could not be provided in a public school 

setting, that would not be dispositive. If plaintiff has not established that the Student has an 

educational disability in the first instance, then the Student could attend public school with no 

services and such a placement would be appropriate under the law. See 20 U.S.C. § 

1400(d)(1)(A). 

Finally, plaintiff argues that the Student should be classified as “other health 

impaired” because the evidence, she contends, shows the Student’s educational performance was 

adversely affected by her bipolar disorder. Plaintiff’s Memorandum at 23-26. Although a 

classification of “other health impaired” requires a showing that the Student’s condition, 

adversely affects her educational performance, 8 NYCRR § 200.1(zz)(10), plaintiff overlooks the 

relevant case law that addresses the meaning of “adverse affects” and, as a result, focuses her 

argument on facts which are not by themselves determinative. 

Neither the IDEA, nor New York State regulations, defines “adverse affects.” See

20 U.S.C. § 1401; 8 NYCRR § 200.1. When courts in this judicial district have analyzed 

- 8 - 

Case 1:07-cv-03419-AKH Document 19 Filed 11/02/2007 Page 8 of 12
classification questions, they have engaged in a fact specific analysis focusing on two factors – 

evidence regarding the allegedly afflicting condition, and evidence regarding academic 

performance. See, e.g., Muller, 145 F.3d at 103-104 (considering evidence that student’s 

emotional difficulties made her unable to learn and evidence that student’s educational 

performance improved in settings where her emotional difficulties were addressed). Even where 

there is testimonial evidence in the record that a student is adversely affected by his or her 

condition, courts still analyze his or her academic record to discern if the condition also affects 

educational performance, taking particular note of any differences in the student’s performance 

in public and private school settings. See, e.g., N.C. v. Bedford Cent. Sch. Dist., 473 F. Supp.2d 

532, 543 (holding that fact that student’s performance was comparable in public school and 

private placement supported finding that student’s educational performance was not adversely 

affected, despite evidence of psychological difficulties); cf. A.C. v. Bd. of Educ., 2007 U.S. Dist. 

LEXIS 31417, *14-15 (S.D.N.Y. April 27, 2007) (finding both that behavior impacted student’s 

education performance and evidence of increased progress at private placement supported award 

of tuition reimbursement). 

Here, as plaintiff notes, there is testimony, albeit contested, that asserts the 

Student is adversely impacted by her bipolar disorder. See Plaintiff’s Memorandum at 24-25. 

But even if this Court accepts this testimony, it does not automatically follow that these affects 

constitute adverse affects on the Student’s educational performance under the IDEA. The record 

shows that the Student succeeded academically both in the public and private school setting. 

Importantly, there is no evidence that the Student’s educational performance improved after 

being unilaterally placed at Dalton. Thus, even if this Court concludes that the affects of the 

Student’s bipolar disorder are evidence of psychological difficulties, it should not find, on this 

- 9 - 

Case 1:07-cv-03419-AKH Document 19 Filed 11/02/2007 Page 9 of 12
record, that they adversely affect her educational performance. See J.D. v. Pawlet Sch. Dist., 224 

F.3d 60, 68 (2d Cir. 2000) (holding evidence of emotional disability was not evidence of adverse 

affects on educational performance); N.C., 473 F. Supp.2d at 546 (finding evidence of 

psychological difficulties, alone, insufficient to classify student as disabled under the IDEA). 

For these reasons, plaintiff still has not demonstrated that the Student can be 

properly classified as “other health impaired,” or any other classification under the IDEA. 

Accordingly, this Court should deny her motion for summary judgment and instead grant the 

DOE’s motion. 

POINT III 

PLAINTIFF HAS NOT ESTABLISHED THAT 

DALTON WAS AN APPROPRIATE 

PLACEMENT FOR THE STUDENT 

Plaintiff argues that Dalton provides an appropriate program for the Student. 

Plaintiff’s Memorandum at 26-27. But, as argued in DOE’s moving papers, plaintiff has not 

established that the services provided by Dalton are special education services, nor that they are 

necessary to meet the Student’s educational needs. See DOE’s Memorandum at 15-17. Further, 

as DOE noted in its previous memorandum, the Second Circuit has distinguished between the 

services touted by plaintiff, which may be desirable, and those that are required under the IDEA. 

See DOE’s Memorandum at 17-19 (citing Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 

115 (2d. Cir. 2007). Plaintiff here has not established that the services provided by Dalton were 

necessary to provide the Student with FAPE, and thus she has not established that Dalton 

provided an appropriate program for the Student. Therefore, even if this Court finds the Student 

should have been classified as disabled under the IDEA, her request for tuition reimbursement 

should still be denied. 

- 10 - 

Case 1:07-cv-03419-AKH Document 19 Filed 11/02/2007 Page 10 of 12
POINT IV 

EQUITABLE CONSIDERATIONS WEIGH 

AGAINST AN AWARD OF TUITION 

REIMBURSEMENT 

Finally, plaintiff argues that equitable consideration support an award of tuition 

reimbursement. Plaintiff supports this contention by noting that she referred the Student to the 

CSE, provided privately obtained evaluations, and attended the CSE meeting. Plaintiff’s 

Memorandum at 27. Plaintiff also maintains that she originally enrolled the Student at Dalton in 

good faith. Id. at 28. Even if that were true, as DOE argued in its previous memorandum, the 

record demonstrates that plaintiff sought an evaluation only to obtain reimbursement for the 

tuition at Dalton and never intended to accept a public school placement. DOE’s Memorandum 

at 19-20. Accordingly, equitable considerations weigh against an award of tuition 

reimbursement. 

- 11 - 

Case 1:07-cv-03419-AKH Document 19 Filed 11/02/2007 Page 11 of 12
Conclusion

Based on the foregoing, defendant New York City Department of Education 

respectfully requests that its motion for summary judgment be granted, and that the Court grant 

DOE such other and further relief as the Court deems just and proper. 

Dated: November 2, 2007 

New York, New York 

MICHAEL A. CARDOZO 

Corporation Counsel of the 

 City of New York 

Attorney for Defendant 

100 Church Street, Room 2-179 

New York, New York 10007 

212-788-0889 

By: /s 

Andrew J. Rauchberg (AR 2179) 

Assistant Corporation Counsel 

To: Neal H. Rosenberg, Esq. 

 Law Offices of Neal Howard Rosenberg 

 Attorney for Plaintiff 

 9 Murray Street, Suite 4 West 

 New York, New York 11235 

 212-732-9450 

 (via ECF) 

- 12 - 

Case 1:07-cv-03419-AKH Document 19 Filed 11/02/2007 Page 12 of 12