Cohen v. New York City Department Of Education

Background

Linda Cohen and Rolando Cohen sued on behalf of their son, M.C., a student with a disability who had an individualized education program. The parents challenged a December 31, 2018 decision by a New York State Department of Education State Review Officer (SRO) under the Individuals with Disabilities Education Act (IDEA).

For the 2017–2018 school year, the parents had unilaterally placed M.C. at the International Academy of Hope (iHOPE). An impartial hearing officer (IHO) found that the New York City Department of Education (DOE) had not offered M.C. a free appropriate public education, that iHOPE was an appropriate placement, and that the parents were entitled to reimbursement for tuition and related services. The DOE did not appeal that decision.

For the 2018–2019 school year, the DOE proposed a public-school placement. The parents instead placed M.C. at the International Institute for the Brain (iBRAIN) and began a new administrative proceeding. They sought funding for iBRAIN under the IDEA’s “stay-put” or pendency provision, which generally requires a child to remain in the current educational placement while an educational dispute is pending.

The IHO ruled that iBRAIN was substantially similar to iHOPE and ordered the DOE to fund iBRAIN as M.C.’s pendency placement. The DOE appealed. The SRO reversed, finding that the record did not support the conclusion that the programs were substantially similar.

Issues and Analysis

The parties filed cross-motions for summary judgment, asking the court to decide the dispute without a trial because they relied on the closed administrative record. The parents asked the court to vacate the SRO’s decision or require the DOE to implement the IHO’s funding order. The DOE argued that the SRO had applied the wrong legal standard and that iHOPE, not iBRAIN, remained M.C.’s pendency placement.

The court held that the SRO had applied the substantial-similarity standard incorrectly when reviewing a parent’s unilateral move from one private school to another. But the court also held that the SRO reached the correct result: iHOPE remained M.C.’s last agreed-upon educational placement.

The court reasoned that the parents’ unilateral placement at iHOPE became the last agreed-upon placement because the IHO found it appropriate and the DOE did not appeal. The parents’ later unilateral move to iBRAIN did not change that placement. The court also held that the IHO’s order requiring funding for iBRAIN did not establish iBRAIN as the pendency placement because the DOE timely appealed that order.

Relying on Second Circuit precedent, the court held that parents cannot obtain pendency funding for a different school merely by showing that its educational program is substantially similar to the last agreed-upon placement. The parents could enroll M.C. at iBRAIN, but the pendency provision did not protect them from the financial risk of doing so. They could seek retroactive reimbursement after the underlying dispute over the proposed 2018–2019 educational plan was resolved.

Disposition

Judge Laura Taylor Swain granted the DOE’s cross-motion for summary judgment and denied the parents’ motion for summary judgment. The court affirmed the SRO’s December 31, 2018 decision solely insofar as it determined that the parents were not entitled to pendency funding for M.C.’s education at iBRAIN during the 2018–2019 school year. The court stated that this ruling was without prejudice to any application for reimbursement of those expenses in the parents’ separate administrative proceeding challenging the proposed educational plan. The Clerk was directed to enter judgment and close the case.