The opinion
15-2798
Dervishi v. Stamford Bd. of Educ.
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 ASUMMARY ORDER@). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 27th day of June, two thousand sixteen.
5
6 PRESENT: DENNIS JACOBS,
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 Circuit Judges.
10
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12 SHKELQESA DERVISHI, on behalf of T.D.,
13 Plaintiff-Appellant,
14
15 -v.- 15-2798
16
17 STAMFORD BOARD OF EDUCATION,
18 Defendant-Appellee.
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20
21 FOR APPELLANT: Shkelqesa Dervishi, pro se,
22 Stamford, CT.
23
24 FOR APPELLEE: Patrick M. Fayhe, Shipman &
25 Goodwin, Hartford, CT.
26
1
1 Appeal from a judgment of the United States District Court
2 for the District of Connecticut (Eginton, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
5 DECREED that the judgment of the district court be AFFIRMED in
6 part, VACATED in part, and REMANDED for further proceedings.
7
8 Shkelqesa Dervishi, pro se, appeals from the judgment of
9 the United States District Court for the District of Connecticut
10 (Eginton, J.) affirming an administrative impartial hearing
11 officer’s (“IHO”) decision denying her Individuals with
12 Disabilities Education Act (“IDEA”) claims brought on behalf
13 of her minor autistic son, T.D., against the Stamford Board of
14 Education (“Board”). We assume the parties’ familiarity with
15 the underlying facts, the procedural history, and the issues
16 presented for review.
17 We review de novo the district court’s grant of summary
18 judgment in an IDEA case, recognizing that summary judgment in
19 this context “involves more than looking into disputed issues
20 of fact; rather, it is a pragmatic procedural mechanism for
21 reviewing administrative decisions.” M.O. v. N.Y.C. Dep’t of
22 Educ., 793 F.3d 236, 243 (2d Cir. 2015) (internal quotation
23 marks and citation omitted). Thus, our de novo review seeks
24 only to independently verify that the administrative record
25 supports the district court’s determination that the
26 individualized education program (“IEP”) was adequate. M.W.
27 ex rel. S.W. v. N.Y.C. Dept. of Educ., 725 F.3d 131, 138 (2d
28 Cir. 2013).
29 1. The IDEA’s purpose is “to ensure that all children with
30 disabilities have available to them a free appropriate public
31 education” (“FAPE”). 20 U.S.C. § 1400(d)(1)(A). To this end,
32 the IDEA requires that states provide disabled children a “basic
33 floor of opportunity” that is likely to benefit the child. T.K.
34 v. N.Y.C. Dept. of Educ., 810 F.3d 869, 875 (2d Cir. 2016). The
35 IDEA’s “principal mechanism” for achieving this is the
36 individualized education program (“IEP”), which is a “written
37 document that must include the child’s level of performance,
38 goals for [his] improvement, and a plan about how to achieve
39 that improvement.” Id.
2
1 If a state fails to provide a FAPE to a disabled child, the
2 parents may elect an alternative placement and seek
3 reimbursement from the state. Doe v. East Lyme Bd. of Educ.,
4 790 F.3d 440, 448 (2d Cir. 2015). Tuition reimbursement
5 entails a three-step inquiry: (i) whether the school district
6 has complied with the IDEA’s procedural requirements; (ii)
7 whether the school district has complied with the IDEA’s
8 substantive requirements, i.e., whether the IEP is reasonably
9 calculated to enable the child to receive educational benefits;
10 and (iii) whether the parent’s alternative placement is
11 “appropriate to the child’s needs.” Id. at 449 (internal
12 quotation marks omitted). Parents must prevail at all three
13 steps to receive reimbursement. Id.
14 Procedural errors render an IEP inadequate only if they
15 “impeded the child’s right to a [FAPE]”; “significantly impeded
16 the parents’ opportunity to participate in the decisionmaking
17 process”; or “caused a deprivation of educational benefits.”
18 20 U.S.C. § 1415(f)(3)(E)(ii). Substantive challenges must
19 demonstrate that an IEP is not “reasonably calculated to enable
20 the child to receive educational benefits.” Doe, 790 F.3d at
21 450 (internal quotation marks and citation omitted). We owe
22 substantial deference to state administrative officers when
23 considering claims of substantive inadequacy. Id.
24 Dervishi’s procedural and substantive challenges to the
25 2010-2011 IEP fail. The IDEA does not require the parents’
26 presence at planning and placement team (“PPT”) meetings;
27 rather, it requires only that the school board give parents the
28 opportunity to participate in the decision about their child’s
29 educational placement. Cerra v. Pawling Cent. Sch. Dist., 427
30 F.3d 186, 193 (2d Cir. 2005). The record shows that the Board
31 gave Dervishi and her husband ample opportunity to so
32 participate: the parents participated in the first two PPT
33 meetings, the Board attempted repeatedly to schedule the next
34 PPT meeting around the parents’ summer travel plans, and the
35 parents attended the fifth (and final) PPT meeting where they
36 presented an independent evaluation and suggested alternative
37 placement options. The Board rejected the parents’ proposed
38 alternative placement options, and was within its rights to do
39 so: “the parent’s right of participation is not a right to ‘veto’
40 the agency’s proposed IEP.” Doe, 790 F.3d at 449.
3
1 The 2010-2011 IEP offered T.D. placement at the Roxbury
2 Elementary School, which had a special education program and
3 could provide T.D. with the enhanced staffing, occupational
4 therapy, and speech therapy, all as outlined in his IEP. There
5 is no basis in the record to reject the IHO’s determination that
6 this combination of placement and services was substantively
7 appropriate. Because we conclude that the Board provided T.D.
8 with a FAPE for the 2010-2011 school year, we need not consider
9 whether the parents’ alternate placements were appropriate.
10 See id.
11 2. The stay-put provision of the IDEA provides that
12 “during the pendency of any proceedings conducted pursuant to
13 this section . . . the child shall remain in [his] then-current
14 educational placement.” 20 U.S.C. § 1415(j). The
15 “then-current educational placement” is typically: (i) “the
16 placement described in the child’s most recently implemented
17 IEP”; (ii) “the operative placement actually functioning at the
18 time when the stay put provision of the IDEA was invoked”; or
19 (iii) “the placement at the time of the previously implemented
20 IEP.” Mackey ex rel. Thomas M. v. Bd. of Educ. for Arlington
21 Cent. Sch. Dist., 386 F.3d 158, 163 (2d Cir. 2004) (internal
22 quotation marks and alterations omitted). The purpose of this
23 provision is “to maintain the educational status quo while the
24 parties’ dispute is being resolved” and requires that the school
25 district “continue funding whatever educational placement was
26 last agreed upon for the child until the relevant administrative
27 and judicial proceedings are complete.” T.M. ex rel. A.M. v.
28 Cornwall Cent. Sch. Dist., 752 F.3d 145, 152, 171 (2d Cir. 2014).
29 A school district is responsible for funding educational
30 placement during the pendency of a dispute under the IDEA
31 regardless of whether the case is meritorious or whether the
32 child would otherwise have a substantive right to that
33 placement. Doe, 790 F.3d at 453.
34 On November 18, 2010, when Dervishi sought administrative
35 review, the placement “actually functioning at the time” was
36 the home program that the school district had agreed to fund
37 for the previous school year. The Board only agreed to fund
38 T.D.’s home program on a temporary basis; but, because “the
39 Board’s obligation to fund stay-put placement is rooted in
40 statute, not contract,” the parties’ intent as to the duration
4
1 of T.D.’s home program does not alter the Board’s reimbursement
2 obligation under the stay-put provision. Id. The district
3 court erred in concluding that the IEP created in August 2010
4 constituted the current placement for purposes of the stay-put
5 obligation because it was never implemented or agreed to by the
6 parents. In light of the foregoing, we vacate the district
7 court’s denial of Dervishi’s stay-put claim. On remand, the
8 district court should (i) calculate the total value of the home
9 program, as specified in the settlement agreement, for the
10 period from November 18, 2010 until the dispute over the
11 2010-2011 IEP is no longer pending, and (ii) order the Board
12 to pay that amount to Dervishi. Id. at 457; Bd. of Educ. of
13 Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 484 (2002).
14 3. Dervishi challenges the dismissal of her claim that the
15 Board breached the parties’ 2009 settlement agreement, in which
16 they agreed on a course of action for T.D. for the 2009-2010
17 school year. While the IHO did not issue a ruling on this claim,
18 factual findings were made that doom Dervishi’s claim. The IHO
19 found that the Board followed the procedure the parties created
20 for selecting consultants, timely held PPT meetings, acted
21 reasonably in trying to accommodate the parents, and timely
22 evaluated and assessed T.D. There is no basis in the record
23 to conclude the Board breached the 2009 settlement agreement.
24 4. To determine whether an IHO is biased, courts consider
25 whether the record shows that the hearing was fair and
26 impartial. See, e.g., E.S. ex rel. B.S. v. Katonah-Lewisboro
27 Sch. Dist., 742 F. Supp. 2d 417, 434-35 (S.D.N.Y. 2010). The
28 record is plain: the IHO conducted a fair and impartial hearing.
29 Accordingly, and finding no merit in Dervishi’s other
30 arguments, we hereby AFFIRM in part and VACATE in part the
31 judgment of the district court, and REMAND for further
32 proceedings.
33 FOR THE COURT:
34 CATHERINE O’HAGAN WOLFE, CLERK
5