1 21

- 2647 Killoran v. Westhampton Beach UFSD

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 1 at the Th urgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 2 on th e 13 th day of July , two thousand twenty

- three. 3 4 PRESENT: 5 MYRNA PÉREZ, 6 ALISON J. NATHAN, 7 MARIA ARAÚJO KAHN, 8 Circuit Judges. 9

__________________________________________ __ 10 11 Christian Killoran, 12 13 Plaintiff

- Appellant
, 14 15 Terrie Killoran, individually and on behalf of 16 their son, A.K., a minor, 17 18 Plaintiff
, 19 20

v. No. 21

- 2647 21 22 Westhampton Beach UFSD, Michael Radday
, 23 Superintendent, Suzanne Mensch, James N. Hulme, 24 Halsey C. Stevens, Joyce L. Donneson, George R. 25 Kast, as Board of Education Members, 26 27 Defendants

- Appellees

. 28

___________________________________________ 29 302 FOR PLAINTIFF

- APPELLANT: C HRISTIAN K ILLORAN , pro se, 1 Killoran Law P.C., Westhampton 2 Beach, NY. 3 4 FOR DEFENDANTS

- APPELLEES: S COTT J. K REPPEIN , Devitt Spellman 5 Barrett, LLP, Smithtown, NY
, Anne 6 Leahey, Anne Leahey Law, LLC, 7 Huntington, NY

. 8 9
Appeal from a n order of the United States District Court for the Eastern District of New 10
York (Seybert, J. ). 11

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 12

DECREED that the order of the district court is AFFIRMED

. 13
This is one of three appeals relat ed to a long

- running dispute between Plaintiff

- Appellant 14

Christian Killoran (“Plaintiff”) and the Westhampton Beach School District (“Westhampton”) 15

over the education of Plaintiff’ s son, A.K

. , a young man who has Down s yndrome

. 1 16
Plaintiff, on behalf of A.K., appeal s from a n order entered on October 11, 2021 by the 17

United Sta tes District Court of the Eastern District of New York (Seybert, J. ), awarding summary 18
judgment in favor of Defendants

- Appellees, Westhampton and various Westhampton officials and 19

members of the Westhampton Board of Education
, in their individual and offic ial capacities 20
( collectively , “Defendants”), on Plaintiff’ s claims under the Individuals with Disabilities 21
Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. 2 In awarding summary judgment, the district 22

1 See Killoran v. Westhampton Beach Sch. Dist

. , No. 22

- 204 (2d Cir.); Killoran v. Westhampton Beach Sch. Dist. , No. 22

- 1753 (2d Cir.)

.

2 At the outset , we resolve Defendants’ motion to strike Plaintiff’s : a) notice of appeal and b) appendix , as it represents a challenge to our jurisdiction . The motion is DENIED

. Defendants argue that the notice of appeal improperly designated an order rather than a judgment, but a notice of appeal m ust “designate the judgmen t

— or the appealable order

— from which the appeal is taken.” Fed. R. App. P. 3(c)(1)(B) (emphasis added). Further, “[a]n appeal must not be dismissed . . . for failure to properly designate the judgment if the notice of appeal was filed after entry of the judgment and designates an order that merged into that judgment.” Fed. R. App. P. 3(c)(7). As for the appendix, this3 court upheld the decision of a State Review Officer (“SRO”) that affirmed the findings of an 1
Impartial Hearing Officer (“IHO”) that Defendants provided A.K. a free appropriate public 2

education ( “FAPE” ) in the least restrictive environment (“ LRE ”) for the 2 018

– 2019 school year. 3
We assume the parties’ familiarity with the underlying facts, the procedural history of the case, 4
and the issues on appeal, which we discuss only as necessary to explain our decision to affirm

. 5

I. Standard of Review 6

We review de novo a district court’s award of summary judgment in an IDEA action. Bd. 7
of Educ. of Yorktown Cent. Sch. Dist. v. C.S. , 990 F.3d 152, 165 (2d Cir. 2021). “In a district court 8
proceeding under the IDEA, the parties and the court typically style the decision as a ruling on a 9
motion for summary judgment, but ‘the procedure is in substance an appeal from an administrative 10
determination, not a summary judgment motion.’” Id. (quoting M.H. v. N.Y.C. Dep’t of Educ. , 685 11
F.3d 217, 226 (2d Cir. 2012)). The district co urt must conduct “an independent review of the 12
administrative record and make a determination based on a preponderance of the evidence,” but 13
“the role of the federal courts in reviewing state educational decisions under the IDEA is 14

circumscribed.” Gagliar do v. Arlington Cent. Sch. Dist. , 489 F.3d 105, 112 (2d Cir. 2007) 15
(internal quotation marks omitted). Courts generally “defer to the final decision of the state 16

authorities, even whe re the reviewing authority disagrees with the hearing officer,” A.C. ex rel. 17
M.C. v. Bd. of Educ. o f Chappaqua Cent. Sch. Dist. , 553 F.3d 165, 171 (2d Cir. 2009) (internal 18
quotation marks omitted) , and “[d]eference is particularly appropriate when . . . the state hearing 19

officers’ review has been tho rough and careful,” Walczak v. Fla. Union Free Sch. Dist. , 142 F.3d 20

119, 129 (2d Cir. 1998). 21

Court has discretion to decline to strike a brief or appendix for failure to comply with the relevant rules. See Amnesty Am. v. Town of W. Hartford , 361 F.3d 113, 133 (2d Cir. 2004). We decline to strike Plaintiff’s appendix

.4 II. Discussion 1

A. The IDEA 2

Under the IDEA, a school district must provide services “tailored to meet the unique needs 3
of a particular child, and

. . . reasonably calculated to enable the child to receive educational 4

benefits.” Gagliardo , 489 F.3d at 107 (internal quotation marks omitted). To administer these 5

servi ces, a school district must develop an individualized education program (“ IEP ”) each year for 6
each student with a disability. M.H. , 685 F.3d at 224. 7
For an IEP to be adequate under the IDEA, it must be “likely to produce progress, not 8

regress ion , and . . . afford[] the student with an opportunity greater than mere trivial advancement

. ” 9
Cerra v. Pawling Cent. Sch. Dist. , 427 F.3d 186, 195 (2d Cir. 2005) (internal quotation marks 10
omitted)

. It must also “ensure that ‘[ t ] o the maximum extent appropriate, chi ldren with disabilities 11

. . . are educated with children who are not disabled. ’ ” T.M. ex rel. A.M. v. Cornwall Cent. Sch. 12

Dist. , 752 F.3d 145, 151 (2d Cir. 2014) (alterations in original) (quoting 20 U.S.C. § 13
1412(a)(5)(A)). “In other words, the state mu st seek to educate each child with a disability in his 14

or her LRE .” Id. 15
“In determining whether an IEP complies with the IDEA, courts make a two

- part inquiry 16
that is, first, procedural, and second, substantive. At the first step, courts examine whether t here 17
were procedural violations of the IDEA, namely, whether the state has complied with the 18
procedures set forth in the IDEA.

. . . Courts then examine whether the IEP was substantively 19
adequate, namely, whether it was reasonably calculated to enable the child to receive educational 20

benefits.” R.E. v. N.Y.C. Dep’t of Educ. , 694 F.3d 167, 1 89

– 90 (2d Cir. 2012) (alterations, 21

citation s , and internal quotation marks omitted). Procedural inadequacies render a proposed 22
placement violative of the IDEA when they “cumulatively result in the denial of a FAPE even if 235 the violations considered individually do not.” Id. at 190. Substantive inadequacies automatically 1
render a proposed placement violative of the IDEA. Id. 2

1. Procedural Claims 3

W e agree with the dist rict court and the SRO that any procedural violations in the 4
development of the IEP did not “ ‘ impede[] the parents’ opportunity to participate in the 5
decisionmaking process regarding the provision of a [FAPE] to the parents ’ child,’ or ‘cause[] a 6
deprivati on of educational benefits.’” T.M. , 752 F.3d at 160 (second alteration in original) (quoting 7
20 U.S.C. § 1415(f)(3)(E)(ii)). 8

Plaintiff correctly contend s that in developing the IEP, the local Committee on Special 9
Education (“CSE”) should have considered A .K.’s New York State Alternate Assessment 10
(“NYSAA”) results , and its failure to do so was a procedural violation

. See 20 U.S.C. 11

§ 1414(c)(1)(A) ( requiring “ review [of] existing evaluation data on the child, including

. . . S tate 12
assessments”); see also 34 C.F.R. § 300.324(a)(1) (“In developing each child’s IEP, the IEP T eam 13
must consider . . . [t]he results of the initial or most recent evaluation of the child[.]”). But the 14
error did not deprive A.K. of a FAPE because the CSE con sidered other information sufficient to 15

understand A.K.’s educational needs. See L.O. v. N

. Y

. C

. Dep ’ t of Educ. , 822 F.3d 95, 1 09

– 1 1 (2d 16
Cir. 2016) (concluding that, on its own, the lack of evidence that CSE reviewed child’s evaluative 17
material, though a p rocedural violation, did not deny child a FAPE)

. Here, there is evidence that 18
the CSE considered the testimony of the teacher who administered the NYSAA, spent significant 19
time reviewing A.K.’s progress and goals with his teachers, service providers, and parents, and 20
analyzed the result of other tests, including the Stanford

- Binet Test, the Vineland Adaptive 21

Behavior Scales, and the Wechsler Individual Achievement Test. Under these circumstances, we 22
conclude that the procedural violation did not render th e IEP legally inadequate

. 236 2. Substantive Claims 1

W e also agree with the district court and the SRO that the IEP was substantively adequate. 2
Plaintiff object s to the fact that the IEP did not incorporate the general education curriculum, align 3

A.K.’s goals with grade

- level learning standards, or attempt to mainstream him in an in

- district 4
public school. At bottom, these arguments fail because A.K.’s IEP was “reasonably calculated to 5

enable [A.K.] to make progress appropriate in light of [his] circumst ances. ” Endrew F. ex rel. 6
Joseph F. v. Douglas Cnty. Sch. Dist. RE

- 1 , 580 U.S. 386, 399 (2017). 7

Under t he IDEA
, a child’s “educational program must be appropriately ambitious

. . . . ” 8

Id. at 40 2 . Plaintiff assert s that this means that A.K. ’s IEP must co nform to the general education 9
curriculum and align with grade

- level standards. But Plaintiff’ s position misunderstands the law. 10
The IDEA requires a child’s educational program to be “appropriately ambitious in light of his 11

circumstances ,” not in conform ance with general education standards. Id. (emphasis added); see 12

also id. (“If [progressing smoothly through the regular curriculum] is not a reasonable prospect for 13
a child, his IEP need not aim for grade

- level advancement.”). It is uncontested that A.K. is an 14
alternately assessed student w ho has significant learning disabilities, which makes adherence with 15
general education standards impossible. Because the IDEA requires the district to develop “an 16
educational program reasonably calculated to enable a child to make progress appropriate in light 17

of the child ’ s circumstances ,” but does not demand adherence with specific educational standards 18
or curricula, we reject Plaintiff’ s argument that A.K.’s IEP was not “ appropriately ambitious

. ” Id. 19

at 40 2

– 0 3. 20
Plaintiff also argue s that the IEP’s recommended placement

— in a special class 3 in an out

21

3 Under New York law, a “[s]pecial class means a class consisting of students with disabilities who have been grouped together because of similar individual needs for the purpose of being provided specially designed instruction . . .” N.Y. Comp. Codes R. & Regs. tit. 8, § 200. 1(uu).7 of

- district public school

— was not the LRE. To determine whether a student ’ s placement is the 1
LRE, we apply a two

- part test , which instructs us to consider (1) “wheth er education in the regular 2
classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a 3
given child,” and (2) “if not, then whether the school has mainstreamed the child to the maximum 4
extent appropriate

. ” P. ex rel

. Mr . And Mrs. P. v. Newington B d. of Educ

. , 546 F.3d 111
, 120 (2d 5
Cir. 2008) (internal quotation marks omitted). 6
With respect to the first prong, we agree with the SRO’s well

- reasoned conclusion that 7
educating A.K. within a regular classroom could not be achieved satisfactorily even with the use 8
of supplemental aids and services. Plaintiff do es not dispute that A.K. placed at or below the first 9
percentile in reading comprehension, spelling, listening comprehension and mathematics; in the 10
low range in single

- word reading and in the low average range in pseudo

- word decoding; and 11
below the first percentile in speech

- language skills. In light of A.K.’s unique needs
, it is clear that 12

it would not be possible to educate him in a regular classroom even with the use of supplemental 13

aids and services. W e also agree with the SRO as to the second prong because t he record shows 14
that the CSE developed an IEP, with input from A.K .’s parents, that sought to mainstream A.K. to 15

the maximum extent appropriate

. Indeed, the IEP recommended that A.K. receive his academic 16
instruction and services in a special class, but that he be mainstreamed for all other non

- academic 17

activities

. Acco rdingly, we conclude that A.K.’s IEP satisfied the IDEA’s LRE requirement. 18

3. Other Claims 19
Finally, we reject Plaintiff’s argument that the decisions of the school district officials and 20
the underlying administrative decisions do not warrant the deference the district court gave them. 21

Plaintiff fail s to provide a coherent argument for why the administrative decisions do not deserve 22

t he deference that our case law instructs us to afford them. See Gagliardo , 489 F.3d at 113

. Such 238 “[d]eference is particularly appropriate when , as here, the state hearing officers’ review has been 1

tho rough and careful.” Walczak , 142 F.3d at 129. W e the refore reject these claims. 2

We have considered the Plaintiff’s remaining arguments and find them to be without merit. 3
Accordingly, we AFFIRM the order of the district court. 4

5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk of Court 7 8