Scheff v. Banks

Background

Chani Scheff sued the New York City Department of Education and David C. Banks, in his official capacity as Chancellor, concerning the educational placement of A.S. The dispute arose under the Individuals with Disabilities Education Act (IDEA), which requires schools receiving federal funds to provide eligible children with disabilities a free appropriate public education.

A.S.’s December 2020 individualized education program (IEP) provided for a 12:1:2 special class, individual speech-language, occupational, and physical therapy, a one-to-one paraprofessional, and an augmentative and alternative communication device. The City later recommended a similar program under a December 2021 IEP, with Stepping Stone identified as the location for services. A.S. attended iBRAIN after Scheff unilaterally moved her there during the 2021–2022 school year. Scheff then intended to keep A.S. at iBRAIN for the 2022–2023 school year after the City recommended other school locations.

Scheff filed an administrative due process complaint challenging the adequacy of the City’s educational programs and seeking a determination that iBRAIN was A.S.’s placement during the dispute. An impartial hearing officer ruled that iBRAIN was the operative placement and ordered the City to pay iBRAIN tuition while the administrative case continued. The City appealed. The State Review Officer vacated that ruling and determined that the December 2020 IEP supplied A.S.’s stay-put placement. The administrative dispute over the adequacy of the City’s programs remained pending.

Issues

The court addressed three related questions:

Governing law

The IDEA’s stay-put provision generally requires a child to remain, at public expense, in the child’s “then-current educational placement” while an IDEA proceeding is pending. The court explained that this usually means the last educational program agreed upon and implemented before the parent challenged the IEP. “Educational placement” generally refers to the type and level of educational services, rather than a particular school building.

The court independently reviewed legal questions and gave appropriate weight to the State Review Officer’s factual and educational-policy determinations. It also considered Second Circuit precedent holding that a parent generally may not unilaterally move a child to a preferred private school and then require the school district to fund that school under the stay-put provision.

Court’s analysis

A.S.’s 2022–2023 stay-put placement. The court held that the December 2020 IEP provided A.S.’s then-current educational placement. The IEP described the general educational program and services, and it did not need to identify a particular school building to serve as the stay-put placement. The December 2021 IEP provided the same general type of program.

Because an agreed-upon and implemented IEP existed, the court held that it did not need to apply the “operative placement” approach urged by Scheff. The court also concluded that Scheff had not shown exceptional circumstances making the December 2020 IEP unsuitable as the basis for stay-put services.

The court rejected Scheff’s reliance on a Second Circuit footnote reserving the question of what happens when a school providing pendency services is unavailable and the district refuses or fails to provide replacement services. The court found that Stepping Stone was available when Scheff moved A.S. to iBRAIN, and that Scheff moved A.S. because she preferred iBRAIN, not because the City had refused to provide services. The court further found that Scheff had not requested a public placement under the December 2020 IEP, while the City had indicated that it was willing to provide one.

The court therefore held that iBRAIN was not A.S.’s public stay-put placement for the 2022–2023 school year and affirmed the State Review Officer’s decision on that issue.

Tuition under the impartial hearing officer’s order. The court rejected Scheff’s argument that the impartial hearing officer’s order required the City to fund iBRAIN while the appeal was pending. It held that only an unappealed hearing-officer decision can become an agreement between the parties that changes the prior stay-put placement. The City had appealed the hearing officer’s decision, and the State Review Officer later vacated it.

The court also rejected the argument that the City had to pay because it did not separately seek a stay of the hearing officer’s order. On the record before it, Scheff had not shown a violation of the stay-put provision or an entitlement to an order requiring payment for iBRAIN. The court stated that the ruling did not prevent Scheff from seeking reimbursement in a separate proceeding under the three-factor Burlington-Carter test. That test asks whether the public program was inadequate or inappropriate, whether the parents’ chosen services were appropriate, and whether equitable considerations support reimbursement.

2023–2024 school year. The parties had agreed that, if the court affirmed the State Review Officer, Scheff could either keep A.S. at iBRAIN at her own expense or request public stay-put programming under the December 2020 IEP. The court directed the parties to confer and file a joint status update about A.S.’s placement by June 30, 2023.

Disposition

Judge Engelmayer denied Scheff’s motion for summary judgment in its entirety and granted the City’s cross-motion for summary judgment. He directed the Clerk of Court to terminate the two pending motions and ordered the parties to confirm whether any issues remained for disposition. The opinion stated that it appeared to resolve all claims raised by Scheff, while requesting confirmation in the status update.