Neske v. Banks

Background

Dorothy Neske and Christopher Neske sued David C. Banks, in his official capacity as chancellor of the New York City Department of Education, and the New York City Department of Education. They brought the action under the Individuals with Disabilities Education Act (IDEA), which requires states to provide eligible children with a free appropriate public education (FAPE).

A.N., who turned twelve during the 2021–22 school year, has a traumatic brain injury and other significant disabilities. After a March 2021 meeting, the Department of Education developed an individualized education program (IEP) for A.N. and designated P.S. 37 as his school. The parents notified the Department that they intended to place A.N. at iBrain, a private school, and later sought reimbursement.

The parents’ administrative complaint alleged that the IEP failed to provide FAPE because it lacked music therapy, individual parent counseling, an extended school day, and assistive technology, and because the proposed school location was unsafe or inappropriate. After a hearing, the impartial hearing officer found that the Department had provided FAPE under the first part of the applicable reimbursement test. The hearing officer nevertheless found that the parents satisfied the test’s other two parts and ordered reimbursement for the assistive-technology device. The state review officer affirmed the FAPE finding but reversed the device-reimbursement award.

Legal framework and issues

The court reviewed the state administrative decisions through the IDEA’s judicial-review process. Although the parties filed motions for summary judgment, the court explained that the motions functioned in substance as an appeal from the administrative decisions. The court had to consider the evidence while giving substantial weight to the administrative officials’ reasoned conclusions, particularly because the impartial hearing officer and state review officer agreed that the IEP provided FAPE.

The court applied the three-part Burlington/Carter test for reimbursement after parents unilaterally place a child in private school: (1) the school district’s proposed plan would not provide FAPE, (2) the private placement was appropriate, and (3) equitable considerations favored reimbursement. Because the Department had the burden on the first part and the court found that the IEP provided FAPE, the court did not need to reach the other two parts.

The parents challenged the IEP on three grounds. First, they argued that the IEP needed to include music therapy as a separate related service. The court deferred to the state review officer’s conclusion that music therapy was not necessary to provide FAPE, noting that the IEP incorporated music into A.N.’s management needs and curriculum and that other services could provide related benefits.

Second, the parents argued that the IEP could not be implemented without an extended school day because it included seventeen hours of related services and thirty-five periods of special education. The court found this argument speculative. The IEP called for most related services to be provided in the classroom, and the parents acknowledged that it was mathematically possible to implement the plan without extending the school day.

Third, the parents argued that P.S. 37 would group A.N. with students whose needs were not appropriate for his development, including students on the autism spectrum. The court held that this challenge was also speculative because A.N. never attended the school and had not been assigned to a particular class. The court stated that the IDEA does not give parents veto power over a child’s classroom or classmates.

Ruling

Judge Analisa Torres held that the state review officer and impartial hearing officer correctly determined that the Department of Education’s proposed plan would provide A.N. with FAPE. The court therefore did not disturb the administrative decisions on the IEP’s adequacy.

The court also upheld the state review officer’s reversal of the assistive-technology reimbursement award. It explained that reimbursement for related services is analyzed together with tuition reimbursement and that, because the IEP provided FAPE, the parents were not entitled to reimbursement under the Burlington/Carter test. The court granted the defendants’ motion for summary judgment, denied the plaintiffs’ motion for summary judgment, directed the Clerk to enter judgment consistent with the order, and closed the case.