UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

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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.

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07 CV 3419 (AKH) (THK) 

NEW YORK CITY DEPARTMENT OF 

EDUCATION’S MEMORANDUM OF LAW IN 

SUPPORT OF ITS MOTION FOR SUMMARY 

JUDGMENT 

PRELIMINARY STATEMENT

Plaintiff, the parent of a student with a disability, brings this action seeking to 

appeal an administrative decision by the New York State Department of Education Office of 

State Review. In that decision, the State Review Officer (“SRO”) denied plaintiff 

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

plaintiff unilaterally placed her daughter (“the Student”) for the 2005-2006 school year. 

Defendant New York City Department of Education (“DOE”) submits this memorandum of law 

in support of its motion for summary judgment. 

The essential issue before the Court is whether plaintiff sustained her burden 

under Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359 (1985), Florence County Sch. 

Dist. Four v. Carter, 510 U.S. 7 (1993), and their progeny and demonstrated that the decision of 

the DOE to not classify the Student as a child with a disability was incorrect, that the general 

Case 1:07-cv-03419-AKH Document 13 Filed 10/05/2007 Page 1 of 21
education program recommended by the DOE was inappropriate, and that the unilateral 

placement chosen by plaintiff for the Student was appropriate. The Impartial Hearing Officer 

(“IHO”) who presided over the underlying hearing found that plaintiff met her burden, and 

granted plaintiff tuition reimbursement, but the SRO reversed that decision. The SRO found that 

the DOE’s decision not to classify the Student as a child with a disability was appropriate, and 

thus, the Student was not entitled to any special education services, nor to reimbursement for 

tuition at Dalton, the unilateral placement chosen by plaintiff. Having made that determination, 

that SRO did not reach the question of whether Dalton was appropriate for the Student. 

As discussed more fully below, this Court should affirm the SRO’s decision and 

award summary judgment to DOE. The SRO correctly held that plaintiff has failed to carry her 

burden of establishing that the DOE erred in refusing to classify the Student as a child with a 

disability. Further, plaintiff also failed to establish that Dalton was an appropriate placement for 

the Student. Finally, the equities do not favor plaintiff in this matter. Accordingly, upon any of 

these reasons, defendant is entitled to judgment as a matter of law, and its motion should be 

granted. 

STATEMENT OF FACTS

The Court is respectfully referred to defendant’s Rule 56.1 Statement of Material 

Facts, dated October 5, 2007 (“Defendant’s 56.1 Statement”), for a statement of those material 

facts which are not in dispute, and on which this motion is based. 

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ARGUMENT

Standard of Review

Congress enacted the Individuals with Disabilities Education Act (“IDEA”), 20 

U.S.C. § 1400 et seq., to promote the education of children with disabilities. The IDEA defines a 

child with a disability as a child “with mental retardation, hearing impairments (including 

deafness), speech or language impairments, visual impairments (including blindness), serious 

emotional disturbance (referred to in this title [20 USCS §§ 1400 et seq.] as "emotional 

disturbance"), orthopedic impairments, autism, traumatic brain injury, other health impairments, 

or specific learning disabilities.” 20 U.S.C. § 1401(3)(A)(i). The New York Education Law 

defines a child or student with a disability more generally as “a person under the age of twentyone who is entitled to attend public schools pursuant to section thirty-two hundred two of this 

chapter and who, because of mental, physical or emotional reasons can only receive appropriate 

educational opportunities from a program of special education,” N.Y. Educ. Law § 4401(1). 

Students who meet these criteria must receive a “free appropriate public 

education” (“FAPE”), 20 U.S.C. § 1400(d)(1)(A), comprising special education and related 

services provided at public expense, which meet the standards of the State educational agency, 

and that are provided in conformity with an Individualized Education Program (“IEP”). 20 

U.S.C. § 1401(9). Students who do not meet these criteria are not entitled to special education 

and related services under the IDEA. See N.C. v. Bedford Cent. Sch. Dist., 473 F. Supp.2d 532, 

546-47 (S.D.N.Y. 2007) (finding that school was not obligated to offer special education services 

to student who did not meet the criteria for classification under the IDEA). By definition, a 

school district’s decision not to provide such services to its non-disabled students cannot be 

considered a denial of FAPE. See id.

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New York defines special education as “specially designed individualized or 

group instruction or special services or programs... to meet the unique needs of students with 

disabilities,” 8 NYCRR § 200.1(ww), and “related services” as developmental, corrective, and 

other supportive services as are required to assist a student with a disability...” 8 NYCRR § 

200.1(qq). State boards of education are required to prepare an IEP for each student with a 

disabling condition, setting forth the goals and objectives for the student, and the recommended 

educational program and related services to attain those goals and objectives. 20 U.S.C. § 

1414(d). Both federal and State special education laws require that a child with a disability be 

educated in the least restrictive environment, that is, with nondisabled peers to the extent feasible 

and appropriate. 20 U.S.C. § 1412(a)(5); N.Y. Educ. Law § 4402. Special education and related 

services should be “tailored to meet the unique needs of the child with a disability and be 

reasonably calculated to enable the child to receive educational benefits.” Walczak v. Florida 

Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998); see also Bd. of Educ. of Hendrick 

Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 207 (1982). The amount, or level, of 

educational benefits that must be provided is not specified in the IDEA. Walczak, 142 F.3d at 

130. The Supreme Court has held that programs need not maximize the potential of a child with 

a disability to provide the child with FAPE. Rowley, 458 U.S. at 197, n.21; Walczak, 142 F.3d 

at 130. 

In New York, the responsibility for developing students’ IEPs has been granted to 

the local Committee on Special Education (“CSE”). 20 U.S.C. §§ 1401(8), 1414(b)(2),(d); 8 

NYCRR § 200.4(b). If the recommendations in the IEP prepared by a CSE do not provide the 

student with FAPE, a parent may select a private school program for the student and seek to 

obtain tuition reimbursement from the local board of education. 20 U.S.C. § 1400(d)(1)(A). A 

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board of education may be required to pay for the educational program selected by the parent 

only if the educational program recommended by the board of education was inadequate or 

inappropriate, the program selected by the parent was appropriate, and the equities support the 

parent’s claim; these three factors comprise the “Burlington/Carter” test, or criteria. Burlington, 

471 U.S. 359; Carter, 510 U.S. 7. In a case where a department of education has not provided 

an appropriate educational program, a parent may unilaterally place a disabled student in a 

private program and obtain reimbursement of tuition if the private placement is appropriate, such 

that the private program meets the child’s special education needs. See Carter, 510 U.S. at 12-

13; Walczak, 142 F.3d at 129. However, parents who unilaterally place their children in private 

schools do so at their own financial risk. Burlington, 471 U.S. at 373-74. 

A parent seeking tuition reimbursement may request an impartial due process 

hearing before an IHO. 20 U.S.C. § 1415(f)(1)(A); New York Education Law § 4404(1). The 

IHO’s decision may be appealed to the SRO, whose decision is final in the administrative review 

process. 20 U.S.C. § 1415(g)(1); New York Education Law § 4404(2). After the completion of 

this administrative review process, the aggrieved party may appeal the decision of the SRO in 

state or federal district court. 20 U.S.C. § 1415(i)(2)(A). In the appeal, both parties may move 

for summary judgment, even if there are disputed issues of material fact. Viola v. Arlington 

Central Sch. Dist., 414 F. Supp.2d 366, 377 (S.D.N.Y. 2006). A parent seeking tuition 

reimbursement for a unilateral placement has the burden of proof, as the burden falls on the party 

seeking the relief. Schaffer v. Weast, 546 U.S. 49, 62 (2005). The IDEA broadly authorizes 

courts to grant relief deemed appropriate. 20 U.S.C. § 1415 (e)(2); see Muller v. Comm. on 

Special Educ., 145 F. 3d 95, 104 (2d Cir. 1998). 

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Two issues are relevant to federal review of an IEP: whether the development of 

the educational plan for the student conformed to procedural requirements, and whether the 

educational plan was reasonably calculated to confer educational benefit on the student. 

Walczak, 142 F.3d at 129 (citing Rowley, 458 U.S. at 206-07). Review of a parent’s unilateral 

placement similarly focuses on whether the placement’s program was reasonably calculated to 

confer educational benefits on the student. Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 

2006) (citing Rowley, 457 U.S. at 207; Muller, 145 F.3d at 105). As no one factor is dispositive 

in evaluating a unilateral placement, courts make the determination based on the totality of the 

circumstances. Frank G., 459 F.3d at 364 (citing Rowley, 457 U.S. at 207; Knable v. Bexley 

City Sch. Dist., 238 F.3d 755, 768 (6th Cir. 2001)). Parents making unilateral placements must 

also conform to certain procedural requirements, but any failure to do so is taken into account 

when weighing equitable considerations. See M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 

(2d Cir. 2000). 

Federal courts are required to decide IDEA actions on the basis of the 

preponderance of evidence developed at the administrative proceedings, and may consider 

additional evidence presented by the parties. 20 U.S.C. §1415(i)(2)(C); M.S. v Yonkers Bd. of 

Educ., 231 F.3d 96, 102 (2d Cir. 2000), cert. denied, 532 U.S. 942 (2001). While IDEA 

administrative determinations are subject to “independent” judicial review, the Supreme Court 

and the Second Circuit have emphasized that they “have interpreted the IDEA as strictly limiting 

judicial review of state administrative proceedings.” See Viola, 414 F. Supp.2d at 377-78 (citing 

Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 380-81 (2d Cir. 2003); Rowley, 458 U.S. at 

204-208; Walczak, 42 F.3d at 129). A district court review of an SRO decision “is by no means 

an invitation to the courts to substitute their own notions of sound educational policy for those of 

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the school authorities which they review.” Rowley, 458 U.S. 176, 206; accord Walczak, 42 F.3d 

at 129. Federal courts “are expected to give ‘due weight’ to state administrative proceedings,” 

M.S., 231 F.3d at 102. The federal courts should defer to the expertise of state and local 

educational agencies and they are required to defer to the findings made at the state 

administrative proceedings, including the final decision of the state authorities. Muller, 145 F.3d 

at 101 (internal citations omitted). 

POINT I 

THE DOE’S DETERMINATION TO NOT 

CLASSIFY THE STUDENT AS A STUDENT 

WITH A DISABILITY WAS PROPER AND 

THE GENERAL EDUCATION PROGRAM IT 

OFFERED WAS APPROPRIATE 

A parent seeking reimbursement for a unilateral private placement must 

demonstrate, in the first instance, that the placement offered by the school district is 

inappropriate. Plaintiff here has not, and cannot, meet that burden. As the SRO correctly 

concluded, the DOE followed the applicable state and federal procedures in evaluating the 

Student, and properly concluded that the Student did not meet the criteria for any of the 

classifications that would entitle her to special education services. Thus, the DOE’s proffered 

general education program was the only appropriate program under the IDEA that the DOE 

could recommend, and this Court should affirm the SRO’s decision denying tuition 

reimbursement. 

A. The IEP formulated for the Student conformed with the procedural requirements of 

both federal and state law. 

The IDEA requires school districts to develop an IEP for each student with a 

disability, specifying the procedures and requirements which must be followed. 20 U.S.C. § 

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1414. In accordance with the demands of the IDEA, New York State regulations specify that 

that a CSE shall evaluate students who may have disabilities. State regulations specify that the 

committee shall include a parent, a regular education teacher, a special education teacher, a 

parent member, the school psychologist, a representative of the school district, and a person 

capable of evaluating the student’s test results (the last two roles may be fulfilled by the school 

psychologist). See N.Y. Educ. Law § 4402(1)(b)(1); 8 NYCRR § 200.3. The parents must be 

able to fully participate in the formulation of the IEP. See Walczak, 142 F.3d at 129. Four 

factors must be assessed in developing the IEP: “(1) academic achievement and learning 

characteristics, (2) social development, (3) physical development, and (4) managerial or 

behavioral needs.” Id. at 123 (citing 8 NYCRR 200.1(kk)(2)(i)); see also 8 NYCRR 200.4(b). 

Any failure to comply with these requirements does not necessarily amount to a denial of FAPE, 

only procedural inadequacies that result in a “loss of educational opportunities or seriously 

infringe upon on a parent’s participation in the creation or formulation of an IEP constitute a 

denial of a FAPE.” Matrejek v. Brewster Cent. Sch. Dist., 471 F.Supp.2d 415, 419 (S.D.N.Y. 

2007) (citing Knable, 238 F.3d at 766; Grim, 346 F.3d at 283). 

In the present case, as both the IHO and the SRO recognized, all of the procedural 

requirements were met. The CSE was duly comprised of all the required participants for the 

Student’s IEP meeting, and the meeting was held within 60 days of receiving parental consent, as 

is also required. Defendant’s Local Rule 56.1 Statement of Undisputed Facts, dated October 5, 

2007 (“Rule 56.1 Statement”) at ¶¶ 13, 19, 22; see also 8 NYCRR § 200.4(b)(7). All of the 

participants, including the parents, participated fully in the entire meeting. Id. at ¶ 23. Finally, 

all four of the critical factors set forth by the Second Circuit in Walczak were properly 

considered by the CSE. Walczak, 142 F.3d at 123. 

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Once plaintiff gave her consent to evaluate the Student, DOE conducted a psychoeducational evaluation, which included the administration of the Stanford Binet Intelligence 

Scale and the Wechsler Individual Achievement Test. Rule 56.1 Statement at ¶¶ 13, 14. DOE 

also observed the Student at Dalton. Id. at ¶ 21. Plaintiff had independent psychological and 

neuropsychological testing done, which included administration of the Wechsler Intelligence 

Scale for Children. Id. at ¶ 20. The CSE considered all of these reports, as well as grade reports, 

and standardized test results, thus thoroughly considering the Student’s academic achievement 

and learning characteristics. Id. at ¶¶ 20, 21. 

DOE also conducted a Social History interview and the Student’s social 

characteristics were explored in the neurological and psychological testing report that was 

considered by the CSE. Rule 56.1 Statement at ¶ 14, 20. The Student was also administered a 

Behavioral Assessment System for Children 2 as part of the psycho-educational evaluation 

conducted by the DOE, and the independent testing plaintiff procured included an evaluation of 

the Student’s emotional functioning. Id. The CSE participants discussed the Student’s social 

and behavioral needs at length, and the seven-page IEP formulated by the CSE for the Student 

discussed the Student’s social and emotional performance in detail. See id. at ¶ 24, 30. The IEP 

also noted that the Student has no physical limitations or physical management needs that would 

have to be accounted for in her education program. Id. at 30. By considering all of these 

materials, the CSE properly assessed all of the required factors in formulating the Student’s IEP. 

The CSE was properly constituted, the participants were all able to contribute to 

the formulation of the Student’s IEP, and all the necessary factors were considered by the panel. 

For these reasons, the procedural requirements were met in evaluating the Student. 

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B. The Student did not meet the criteria for any of the qualifying “disabilities” that 

would make her eligible for special education and related services and, thus, a 

general education program was the only program the CSE could appropriately 

recommend. 

At the January 23, 2006 meeting, the CSE properly concluded that the Student did 

not meet the criteria for any of the specific disabilities covered in the IDEA. There are three 

classification that could potentially apply to the Student – learning disabled, emotionally 

disturbed, and other health impaired – but after careful consideration, the CSE found the Student 

could not be appropriately categorized as any of the three. Rule 56.1 Statement at ¶ 25. Based 

on the evidence before it, this was the correct determination and the only conclusion that the 

CSE could reach. 

The Student could not be appropriately categorized as learning disabled. New 

York defines “learning disability” as: 

[A] disorder in one or more of the basic 

psychological processes involved in understanding 

or in using language, spoken or written, which 

manifests itself in an imperfect ability to listen, 

think, speak, read, write, spell, or to do 

mathematical calculations, as determined in 

accordance with section 200.4 (c)(6) of this Part. 

The term includes such conditions as perceptual 

disabilities, brain injury, minimal brain dysfunction, 

dyslexia and developmental aphasia. The term does 

not include learning problems that are primarily the 

result of visual, hearing or motor disabilities, of 

mental retardation, of emotional disturbance, or of 

environmental, cultural or economic disadvantage. 

8 NYCRR § 200.1(zz)(6). For a psychological disorder to qualify as a “learning disability,” 

there must a discrepancy of at least 50% between the student’s intellectual abilities and 

achievement test scores. See Rule 56.1 Statement at ¶ 26; see also Exhibit (“Exh.”) SRO 3 at 

236. The CSE analyzed the IQ scores from both the testing conducted by the DOE and the 

privately obtained testing and both showed that the Student’s discrepancy was far less than 50%, 

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well below the criteria for a learning disability. See Rule 56.1 Statement at ¶ 26. Further, the 

Student performed exceptionally on the verbal portion of the Stanford Binet test, on the reading 

and written expression portions of the Wechsler Individual Achievement Test, and on the verbal 

comprehension portion of the Wechsler Intelligence Scale for Children test. Exh. SRO 3 at 211-

212, 215-216, 226. These results demonstrate that the Student has little or no difficulty in 

understanding or using language, spoken or written, as the statutory definition of “learning 

disability” requires. See 8 NYCRR 200.1(zz)(6). Thus, the CSE properly concluded, based on 

the evidence before it, that the Student could not be classified as having a “learning disability.” 

The Student also showed no signs of an emotional disturbance, as the term is 

defined by statute, in the behavioral testing reviewed by the CSE, or in any other part of the 

record. Rule 56.1 Statement at ¶¶ 16, 27. New York defines “emotional disturbance” as: 

[A] condition exhibiting one or more of the 

following characteristics over a long period of time 

and to a marked degree that adversely affects a 

student’s educational performance: 

(i) an inability to learn that cannot be explained by 

intellectual, sensory, or health factors; 

(ii) an inability to build or maintain satisfactory 

interpersonal relationships with peers and teachers; 

(iii) inappropriate types of behavior or feelings 

under normal circumstances; 

(iv) a generally pervasive mood of unhappiness or 

depression; or 

(v) a tendency to develop physical symptoms or 

fears associated with personal or school problems. 

The term includes schizophrenia. The term does not 

apply to students who are socially maladjusted, 

unless it is determined that they have an emotional 

disturbance. 

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8 NYCRR § 200.1(zz)(4). The Student did not exhibit to a meaningful degree any of the five 

possible characteristics of an emotional disturbance. First, her academic record and her 

achievement test scores demonstrate that she does not suffer from an “inability to learn.” See

Rule 56.1 Statement at ¶¶ 4, 5, 9, 15, 20; 8 NYCRR § 200.1(zz)(4)(i). Second, the Student is 

able to maintain appropriate relationships with her peers and with teachers. See 8 NYCRR § 

200.1(zz)(4)(ii). Marilyn Mash, the Special Education teacher who observed the Student and 

participated in the CSE review, testified that the Student interacted well with her teachers and 

with other students, and the Student’s performance on the Behavioral Assessment System 

indicated she has a good attitude regarding teachers and school. Exh. SRO 3 at 218, 321, 327, 

330. Third, the Student did not report or demonstrate any inappropriate behavior or feelings 

during the evaluative testing conducted or when she was observed at Dalton. Exh. 6 at 5-6; Exh. 

7 at 1-3; Exh. 8 at 3-4, 8-9; Exh. SRO 3 at 218; see also 8 NYCRR § 200.1(zz)(4)(iii). Fourth, 

the Student also did not report or demonstrate signs of depression or unhappiness during the 

aforementioned testing and observations. Exh. 6 at 5-6; Exh. 7 at 1-3; Exh. 8 at 3-4, 8-9; Exh. 

SRO 3 at 218; see also 8 NYCRR § 200.1(zz)(4)(iv). 

Fifth, while plaintiff expressed concern about the Student’s anxiety and this was 

considered by the CSE, both the DOE and private testing indicated that the Student had coping 

skills and support systems in place to deal with anxiety and other concerns. See Exh. 6 at 7; 

Exh. 8 at 9; Exh. SRO 3 at 239. Moreover, the Student had consistently functioned and 

performed well in school. See Rule 56.1 Statement at ¶¶ 4, 5, 9, 15, 20. Therefore, even if the 

Student had a “tendency to develop physical symptoms or fears associated with personal or 

school problems,” this tendency was not apparent for a “long period of time” or otherwise as the 

statutory definition of emotional disturbance requires. See 8 NYCRR § 200.1(zz)(4)(v). Further, 

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the testing reviewed by the CSE indicated that the Student’s bipolar disorder was not adversely 

affecting her educational performance, nor was her anxiety or any other condition. Rule 56.1 

Statement at ¶¶ 16, 27. To the contrary, she had excelled at every level, both in the public school 

setting and in private school. Id. at ¶¶ 3, 4, 5, 9. Therefore, as set forth under New York law, the 

Student did not meet the criteria for any of the characteristics of emotional disturbance. 

Finally, the Student also could not properly be classified as “other health 

impaired.” New York defines “other health impaired” as: 

[H]aving limited strength, vitality or alertness, 

including a heightened alertness to environmental 

stimuli, that results in limited alertness with respect 

to the educational environment, that is due to 

chronic or acute health problems, including but not 

limited to a heart condition, tuberculosis, rheumatic 

fever, nephritis, asthma, sickle cell anemia, 

hemophilia, epilepsy, lead poisoning, leukemia, 

diabetes, attention deficit disorder or attention 

deficit hyperactivity disorder or tourette syndrome, 

which adversely affects a student's educational 

performance. 

8 NYCRR § 200.1(zz)(10). As with “emotional disturbance,” the CSE found the Student could 

not be classified as “other health impaired” because such a classification requires a finding that 

the Student have a medical condition that adversely affected her educational performance. Rule 

56.1 Statement at ¶ 28. As noted above, the Student has a strong and impressive academic 

record, and there is no indication that her educational performance has been adversely affected or 

that she is not alert with respect to her educational environment. See id. at ¶¶ 4, 5, 9; 8 NYCRR 

§ 200.1(zz)(10). Further, the Student demonstrated acute alertness to the educational 

environment by participating effectively in class, and reports indicate the Student did so 

regularly. See Exh. 7 at 1-3; Exh. SRO 3 at 327. Thus, following the statutory definition, the 

CSE properly concluded that the Student also did not meet the criteria for, and could not be 

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properly classified as, “other health impaired” under the statutory definition. Id. at ¶ 28; 8 

NYCRR § 200.1(zz)(10). 

Despite these facts, the IHO concluded that the Student should be classified as 

“other health impaired.” Rule 56.1 Statement at ¶ 37. Although the IHO observed that no 

empirical evidence established that the Student’s bipolar disorder affected her educational 

performance, he was swayed by testimony from the Student’s teacher at Dalton that the disorder 

did affect the Student adversely because the Student occasionally displayed symptoms of her 

disorder. Id. at ¶ 38. Based on this testimony, the IHO concluded that the Student’s grades and 

test scores might have been higher still, if not for her disorder. Id. at ¶ 39. 

However, as the SRO noted, the IHO’s conclusions were speculative and not 

based on the evidence in the record. Rule 56.1 at ¶ 49. The SRO found the record demonstrated 

a strong academic performance by the Student with no apparent adverse affects. Id. at ¶ 49, 50. 

The SRO held that because record did not demonstrate that the Student’s educational 

performance was adversely affected, the CSE was correct when it did not classify the Student as 

child with a disability. Id. at ¶ 51; see also N.C., 473 F. Supp.2d at 546 (holding decision to not 

classify student as child with a disability was proper in part because student’s academic 

achievements demonstrated that psychological difficulties did not adversely affect the student’s 

educational performance). 

The SRO reached the correct conclusion and was right to reverse the IHO. The 

record demonstrates that the Student, at most, suffers from age appropriate anxiety and 

emotional concerns, but her educational performance has not been negatively affected by these 

concerns. See Rule 56.1 Statement at ¶¶ 4, 5, 9, 16, 27, 28. To the contrary, the Student has 

performed exceptionally at school for all the school years documented in the record. See id. For 

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this reason, she cannot be properly classified as “other health impaired,” and she cannot be 

properly classified as having any other disability recognized by the IDEA. Id. at ¶¶ 24-28. 

Therefore, the CSE properly classified her as non-handicapped. 

As the Student was properly classified as not having any disability, she is not 

entitled to special education or related services, nor does the record indicate that she requires 

such services. Thus, the only appropriate recommendation the CSE could have made was for 

placement in a general education program. For the foregoing reasons, this Court should uphold 

the decision of the State Review Office and grant defendant’s motion in its entirety. 

POINT II 

THE UNILATERAL PLACEMENT 

SELECTED BY PLAINTIFF IS NOT AN 

APPROPRIATE PLACEMENT UNDER THE 

IDEA 

Even if this Court were to find that the DOE’s classification of the Student as 

non-handicapped was in error and constituted a denial of FAPE, plaintiff still must demonstrate 

that Dalton was appropriate to meet the special education needs of the Student to be entitled to 

tuition reimbursement. Shaffer, 546 U.S. at 62; M.S., 231 F.3d at 104. Plaintiff here cannot do 

so, and accordingly, DOE’s motion should be granted. 

In order to prevail, plaintiff must show that Dalton provided an educational 

program and the necessary support services that met the Student's special education needs. E.g., 

Frank G., 459 F.3d at 364-65 (citing Rowley, 458 U.S. at 188-89; M.S., 231 F.3d at 105). As 

noted above, New York defines special education as “specially designed individualized or group 

instruction or special services or programs... to meet the unique needs of students with 

disabilities,” 8 NYCRR § 200.1(ww), and “related services” as developmental, corrective, and 

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other supportive services as are required to assist a student with a disability...” 8 NYCRR § 

200.1(qq). However, Dalton is not providing special education or related services to the Student, 

and thus it cannot be an appropriate placement for her. Rule 56.1 Statement at ¶ 10; see also 

Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 113-14 (2d. Cir. 2007) (finding unilateral 

placement was not appropriate because it did not provide necessary special education services to 

the student). 

Dalton is a general education school and the Student was in an accelerated, 

general education program. Rule 56.1 Statement at ¶ 7, 9. Indeed, the services, or 

“accommodations,” that the Student received while at Dalton are all readily available in a 

general education, public school setting. Id. at ¶ 11. In the proceedings below, plaintiff cited to 

Dalton’s making the school nurse and psychologist available to the Student, the prompting and 

support provided by the Student’s teacher, and the services of a learning specialist who observed 

the Student’s classroom three times per week. Id. at ¶ 10. However, none of these constitute 

special education services. The school nurse did not provide any particular service to the 

Student, but made her office available to the Student as a place to relax. Id. The school 

psychologist was available to speak with the Student, but had no regular sessions with her and 

the record does not show that the Student availed herself of this opportunity with any frequency. 

See id. The prompting and support offered by the Student’s teacher are also not examples of 

special education services designed to meet the Student’s needs – they are merely examples of 

good and considerate teaching provided by a teacher sensitive to the Student’s bipolar disorder. 

See id. The learning specialist who observes the Student also does not provide the Student with 

any particular services, but simply offers advice to the Student’s teacher in how to approach 

teaching the Student, and other children in the class. See id. These also are not special education 

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services, as defined by the State. Further, as mentioned above, all of these services would be 

available to the Student in a public school, general education program. Id. at ¶ 11. As Dalton 

does not provide the Student with any special education services, it cannot be considered an 

appropriate placement for her, even if she were found to be a student in need of special 

education. 

In his decision, the IHO held that, in addition to the accommodations the Student 

receives at Dalton, the progress the Student has made while at Dalton supported his conclusion 

that Dalton was an appropriate placement. Rule 56.1 Statement at ¶ 42. However, evidence of 

the Student’s progress after the unilateral placement is made is not the only basis on which to 

decide whether Dalton was an appropriate placement. See, e.g., Viola, 414 F. Supp.2d at 382 

(stating that any progress made after unilateral placement is made should not be considered). 

Of particular relevance to the case at bar, the Second Circuit stated in Gagliardo: 

We finally add a word about the position a district 

court finds itself in where, as here, it is called upon 

to review a case in which parents have enrolled 

their disabled child in a private school, believing it 

to be the best thing for the child, and can point to 

their child’s record of success at the school they 

chose. It is understandable that a district court 

would be receptive to parents under these 

circumstances; a child’s progress is relevant to the 

court’s review. But such progress does not itself 

demonstrate that a private placement was 

appropriate....Indeed, even where there is evidence 

of success, courts should not disturb a state’s denial 

of IDEA reimbursement where, as here, the chief 

benefits of the chosen school are the kind of 

educational and environmental advantages and 

amenities that might be preferred by parents of any 

child, disabled or not. A unilateral placement is 

only appropriate if it provides education instruction 

specifically designed to meet the unique needs of a 

handicapped child. 

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Gagliardo, 489 F.3d at 115 (internal citations omitted). This reasoning applies directly to the 

errors made by the IHO, who gave too much credit to both the Student’s progress and to the 

Dalton program in finding the placement appropriate. See Rule 56.1 Statement at ¶ 42. Further, 

any progress the Student has enjoyed at Dalton is no more than the progress she had been 

making at P.S. 166. See Rule 56.1 Statement at ¶¶ 4, 5, 9. There is no evidence of any notable 

academic improvement after the Student was removed from P.S. 166 and placed at Dalton, 

making any progress made by the Student at Dalton even less significant. See N.C., 473 F. 

Supp.2d at 543 (finding lack of evidence of “dramatic academic improvement” at unilateral 

placement mitigating against an award of tuition reimbursement); see also Viola, 414 F. Supp.2d 

at 382 (noting that progress made at unilateral placement does not prove similar progress would 

not have been made in public school setting). 

It should also be noted that much of what plaintiff cited below as establishing the 

appropriateness of Dalton could simply be considered educationally desirable for any student. It 

is reasonable to infer, as the Second Circuit did, that all parents want smaller classes and 

attentive staff in their children’s schools. See Gagliardo, 489 F.3d at 115. However, this Court 

should not allow plaintiff to conflate those services which are “desirable” with those that are 

required. The IDEA and its State counterparts insist that school districts provide special 

education students with services that meet their needs, but they do not require schools to provide 

ideal services. See 8 NYCRR § 200.1(ww); Walczak, 142 F.3d at 130. The Supreme Court has 

held that the IDEA does not require school districts to maximize students’ potential. Rowley, 

458 U.S. at 197, n.21; Walczak, 142 F.3d at 130. Thus, while the services the Student receives 

at Dalton may be desirable, this is not the IDEA’s mandate. The IDEA was not intended to 

provide general education students with a means to receive scholarships to private schools. If 

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plaintiff is to be reimbursed for the Dalton tuition, she must establish that Dalton’s services were 

special education services that were necessary to provide the Student with a free and appropriate 

public education. See Carter, 510 U.S. at 12-13; Walczak, 142 F.3d at 122, 129. Upon the 

record before this Court, she cannot do so. For these reasons, her claim for tuition 

reimbursement should be denied, and the DOE’s motion should be granted. 

POINT III 

EQUITABLE CONSIDERATIONS WEIGH IN 

FAVOR OF DENYING PLAINTIFF TUITION 

REIMBURSEMENT 

Finally, in order for plaintiff to obtain reimbursement for the Dalton tuition, she 

must not only demonstrate that the school district’s general education program was inappropriate 

and the unilateral placement she chose was appropriate for the Student’s needs; the third prong 

of the Burlington/Carter test requires that the equities must be resolved in the parent’s favor. 

See Burlington, 471 U.S. at 370-71; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-

18 (S.D.N.Y. 2005). Equitable considerations are relevant to the relief fashioned under the 

IDEA, and the Courts should consider all relevant factors, including the reasonableness of the 

parties’ position. See Wolfe v. Taconic Hills Central School Dist., 167 F. Supp.2d 530, 533 

(N.D.N.Y. 2001). 

In this case, even if the Court should find that the placement offered by DOE was 

inappropriate and the unilateral placement selected by the parent was appropriate, a 

consideration of the equitable factors here weighs heavily in favor of denying reimbursement. 

The record indicates that plaintiff did not intend to accept any public school placement, but 

sought an evaluation from the CSE solely to support her claim for reimbursement of the 

Student’s tuition at Dalton. 

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By the time plaintiff contacted the DOE, she had already retained an attorney. 

Rule 56.1 Statement at ¶ 17. By that time, the Student had been enrolled at Dalton for more than 

two school years and plaintiff did not want to uproot her from there. See id. at ¶ 12. Plaintiff 

sought an impartial hearing before the CSE was able to meet, in doing so seeking reimbursement 

before the CSE even had an opportunity to make a recommendation. See id. at ¶¶ 13, 20. 

Finally, after the CSE meeting, plaintiff made no effort to have the CSE revise its 

recommendation, but instead renewed her request for an impartial hearing with the intention of 

obtaining tuition reimbursement. Id. at ¶ 31. 

All of these facts indicate that plaintiff contacted the CSE not to find a public 

school program for the Student, but to obtain reimbursement for Dalton. This suggests plaintiff 

never intended to place the Student back in the public school system. Therefore, equitable 

considerations do not support plaintiff’s claim, and weigh in favor of denying tuition 

reimbursement. See Carmel, 373 F. Supp. 2d at 418 (finding evidence that parents did not intend 

to send student to public school supported conclusion that parents were not entitled to tuition 

reimbursement). 

Accordingly, all three of the Burlington/Carter factors should be decided in favor 

of DOE, and DOE’s motion for summary judgment should be granted. 

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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: October 5, 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) 

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