Neske v. New York City Department of Education

Background

Dorothy Neske and Christopher Neske sued on behalf of their child, A.N., and individually. The opinion states that A.N. is ten years old and has learning disabilities caused by a brain injury. The parents sought an order requiring the New York City Department of Education (DOE) to pay A.N.’s tuition and related costs at the International Institute for the Brain, called iBrain, a private school for children with special needs.

For the 2017–18 school year, the parents had enrolled A.N. at the International Academy of Hope, called iHope, claiming that DOE had not offered A.N. a free and appropriate public education. An impartial hearing officer found that DOE had not developed an appropriate individualized education program for that school year, found iHope suitable, and ordered DOE to reimburse the tuition and other attendance costs. DOE did not appeal that decision.

For the 2018–19 school year, the parents moved A.N. from iHope to iBrain without DOE’s agreement. They sought an order requiring DOE to fund iBrain as A.N.’s “pendency” or “stay-put” placement while their administrative dispute continued. The court dismissed that earlier lawsuit, holding that the Individuals with Disabilities Education Act’s stay-put provision did not allow parents to require a school district to fund a new school to which they had unilaterally moved their child. The Court of Appeals for the Second Circuit later affirmed that decision and the denial of reconsideration.

For the 2019–20 school year, the parents again sought pendency funding at iBrain. An impartial hearing officer found that iBrain’s educational program was substantially similar to iHope’s and ordered DOE to fund iBrain while the proceedings continued. DOE told the parents it planned to appeal and would not comply. The parents then filed this case to enforce that order. During the litigation, a state review officer reversed the impartial hearing officer’s order based on the Second Circuit’s decision in Ventura de Paulino v. New York City Department of Education.

Motion to Dismiss

DOE moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint alleges enough facts to state a legally plausible claim. The court considered the Individuals with Disabilities Education Act’s stay-put provision, 20 U.S.C. § 1415(j). That provision generally requires the child to remain in the “then-current educational placement” during the relevant proceedings unless the parents and educational agency agree otherwise.

The parents argued that the current placement referred to A.N.’s educational program rather than a particular school building. Because they contended that iBrain’s program was substantially similar to iHope’s, they argued that DOE had to fund iBrain. The court rejected that interpretation based on three Second Circuit decisions involving iHope-to-iBrain transfers, including the earlier appeal involving these parents.

The court explained that, under those decisions, parents may not unilaterally move a child to a different school and then require the school district to fund that school as a pendency placement. Whether the new school’s program is substantially similar to the prior program does not change the result. Because the parents had moved A.N. from iHope to iBrain on their own, DOE was not required to fund iBrain under the stay-put provision.

The parents also argued that an exception applied because iHope was allegedly no longer available and DOE had failed to provide pendency services. The court declined to consider the claim that iHope had changed substantially because that allegation appeared only in the parents’ legal memorandum, not in the complaint. The court also rejected the argument that DOE had to take affirmative steps to secure a seat at iHope. Under the cited Second Circuit decisions, iHope became the pendency placement by operation of law when DOE did not appeal the earlier finding that iHope was appropriate.

The court further stated that DOE’s proposal of a different placement at P.S. R037 did not mean DOE had failed to provide pendency services. The opinion indicates that the parents did not accept that proposed placement, leaving iHope as A.N.’s pendency placement. The court concluded that the parents had failed to state a plausible claim and granted DOE’s Motion to Dismiss.

Preliminary Injunction

The parents also sought a preliminary injunction requiring DOE to fund iBrain, including for the period from July 9, 2019, when they filed their initial due process complaint, through May 17, 2020, the day before the Second Circuit decided Ventura de Paulino. They argued that the stay-put provision operated as an automatic injunction and that DOE had been required to follow the impartial hearing officer’s order while appealing it.

The court rejected those arguments because iBrain was not A.N.’s pendency placement and DOE had not violated the parents’ pendency rights. The court also stated that the complaint did not allege facts showing that A.N.’s education was at risk of disruption or that A.N. would otherwise be harmed without an injunction.

The court separately held that the parents did not satisfy the requirements for a preliminary injunction under Rule 65. Those requirements include showing a likelihood of success on the merits and a likelihood of irreparable harm. The court found that the controlling Second Circuit decisions defeated any likelihood of success and that the parents had not shown irreparable injury. The court therefore denied the Cross-Motion for a Preliminary Injunction.

Disposition

Judge Valerie Caproni granted DOE’s Motion to Dismiss and denied the parents’ Cross-Motion for a Preliminary Injunction. The Clerk was directed to terminate the pending motions and deadlines and close the case.