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In Re: Student v. Arlington Public Schools BSEA #  25-03543

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Student v. Arlington Public Schools                                 

BSEA #25-03543

RULING ON ARLINGTON PUBLIC SCHOOLS’ [PARTIAL] MOTION TO DISMISS  

This matter comes before the Hearing Officer on Arlington Public Schools’ (District or Arlington) September 26, 2024 [Partial] Motion to Dismiss, asserting “the Parents are seeking an order of prospective placement for the 2024/2025 school year at the Carroll School, a private school which is not approved by the Department of Elementary and Secondary Education and which will not accept funding from public schools. Furthermore, the Parents made additional requests that are outside the jurisdiction of the BSEA.” Specifically, Arlington contends that “the following requests made by the Parents must be dismissed:

  1. An order requiring the district to draft an IEP indicating placement of [Student] at Carroll School and extended school year (Carroll Summer) with “stay put” rights;
  2. In the alternative to [A], order the district to reimburse for tuition prospectively and retrospectively for [Student] to attend the Carroll School during the academic year and the extended school year (Carroll Summer);
  3. An order requiring the district to assume all costs with placement at Carroll, including tuition, transportation (including nursing) and lunch);
  4. Expert’s fees and costs.”

On September 30, 2024[1], Parents, who are pro se, filed Motion in Opposition (Opposition) asserting that “the district’s conclusions that BSEA cannot support a placement at Carroll are inconsistent with IDEA, options available through DESE, and Carroll’s policies.” In addition, Parents contend that

“Lunch is free for all students in the Arlington Public School system. Carroll does not have a lunch program and we have to provide all lunches ourselves. It is our claim that lunch, like transportation (and nursing), represent a portion of the financial risk we undertook in placing [Student] at the Carroll School. They should be weighed in a similar manner.

IDEA permits the award of attorneys’ fees to the prevailing party as part of costs. We do not have attorney fees because we are moving forward pro se, but we do have costs. We believe those costs should be included, particularly as we have been denied by the district an opportunity to resolve our dispute through a method other than due process.”

Neither party has requested a hearing on the Motion. Because neither testimony nor oral argument would advance the Hearing Officer’s understanding of the issues involved, this Ruling is issued without a hearing, pursuant to Bureau of Special Education Appeals Hearing Rule VII(D).

For the reasons set forth below, the District’s Motion is hereby ALLOWED, in part, and DENIED, in part.

RELEVANT FACTS:

For the purposes of this Motion, I must take the assertions set out in the Parents’ Complaint as true.

  1. Student is a nine-year-old fourth grader currently enrolled at the Carroll School where she was placed unilaterally by Parents at the beginning of the 2024-2025 school year. She lives with her family in Arlington, Massachusetts. Student is diagnosed with dyslexia and type one diabetes.
  2. Student first enrolled in Arlington Public Schools for first grade in the 2022-2023 school year and attended for the entirety of her first, second and third grade years.
  3. Parents had been worried about Student’s learning profile since kindergarten, but “it was the increasing difficulty with reading despite ongoing intervention, and the onset of school avoidance behaviors and psychosomatic complaints which triggered [their] pursuit of additional support for their daughter.”
  4. In November 2022, concerned with Student’s “increasing difficulty with reading [], and the onset of school avoidance behaviors and psychosomatic complaints”, Parents initiated the evaluation process.
  5. In the spring of 2023, the Team found Student eligible for special education and related services pursuant to the Disability Category of Specific Learning Disability (dyslexia). Parents rejected the initial IEP on the basis that it was not reasonably calculated or sufficient to provide their child with a FAPE.
  6. At the same time, Student began working with a tutor specializing in the Orton-Gillingham approach to reading instruction
  7. In the summer between her second and third grade (summer of 2023), Student was hospitalized and diagnosed with Type 1 Diabetes. The “diagnosis raised parental concerns for [Student’s] emotional regulation and overall mental health, in light of her pre-existing mental health struggles resulting from her increasing educational deficit.”
  8. In the latter part of the 2023-2024 school year (Student’s third grade), Parents privately funded a comprehensive assessment, the results of which demonstrated lack of progress and new areas of vulnerability.
  9. In the spring of 2024, Parents requested that the District place Student at the Carroll School.  The District denied the request, and Parents subsequently unilaterally placed Student at the Carroll School.
  10. The Carroll School is not approved by the Department of Elementary and Secondary Education. The Carroll School does not accept public funds from school districts.
  11. On September 17, Parents filed a Hearing Request with the BSEA alleging procedural and substantive denials of a FAPE to Student since February 2023. They sought an Order finding that the District violated Student’s “rights under IDEA and MGL c. 71B by failing to find [Student] [eligible], and subsequently proposing IEPs and placements during the period of 2/1/2023 to present that were not reasonably calculated to provide [Student] with a FAPE”; that “the district to draft an IEP indicating placement of [Student] at Carroll School and extended school year (Carroll Summer) with ‘stay put’ rights”; that, “[i]n the alternative to #2, order the district to reimburse for tuition prospectively and retrospectively for [Student] to attend the Carroll School during the academic year and the extended school year (Carroll Summer)”; that “the district to assume all costs with placement at Carroll, including tuition, transportation (including nursing) and lunch”; that the district provide “compensatory payment for … the retroactive payment of [Student’s] extended school day and extended school year”; and that the district reimburse Parents’ “[e]xpert’s fees and costs.”

LEGAL STANDARDS:

  1. Motion to Dismiss

Pursuant to Rule XVII A and B of the Hearing Rules and 801 CMR 1.01(7)(g)(3)[2], a hearing officer may allow a motion to dismiss if the party requesting the hearing fails to state a claim upon which relief can be granted. These rules are analogous to Rule 12(b)(6) of the Federal Rules of Civil Procedure. As such, hearing officers have generally used the same standards as the courts in deciding motions to dismiss for failure to state a claim. To survive a motion to dismiss, there must exist “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief.”[3] The hearing officer must take as true “the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff’s favor.”[4] These “[f]actual allegations must be enough to raise a right to relief above the speculative level.”[5]

  1.  Jurisdiction of the Bureau of Special Education Appeals (BSEA)

20 U.S.C. § 1415(b)(6) grants the Bureau of Special Education Appeals (BSEA) jurisdiction over timely complaints filed by a parent/guardian or a school district “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.”[6]  In Massachusetts, a parent or a school district, “may request mediation and/or a hearing at any time on any matter[7]concerning the eligibility, evaluation, placement, IEP, provision of special education in accordance with state and federal law, or procedural protections of state and federal law for students with disabilities.”[8] Nevertheless, it is well established that matters that come before the BSEA must involve a live or current dispute between the Parties.[9]  In addition, the BSEA “can only grant relief that is authorized by these statutes and regulations, which generally encompasses orders for changed or additional services, specific placements, additional evaluations, reimbursement for services obtained privately by parents or compensatory services.”[10]

APPLICATION OF LEGAL STANDARDS:

In evaluating the District’s Motion to Dismiss under the legal standard set forth above, I take the Parents’ allegations as true as well as any inferences that may be drawn from them in their favor, and deny dismissal if these allegations plausibly suggest an entitlement to relief.[11]  

The District is correct that a Hearing Officer cannot order prospective placement in an unapproved program where an approved appropriate program is available.  Under 20 U.S.C. § 1401(a)(18)(D), the ‘free and appropriate public education’ required under IDEA must meet the standards of the State educational agency; this means that “the universe of private programs that a state may consider is at least partly defined by state law.”[12] 603 CMR 28.06 (3)(d) states that the “school district shall, in all circumstances, first seek to place a student in a program approved by the Department pursuant to the requirements of 603 CMR 28.09….When an approved program is available to provide the services on the IEP, the district shall make such placement in the approved program in preference to any program not approved by the Department.”  As such, the Hearing Officer cannot order a school district to fund an unapproved program[13] except “in cases where a parent unilaterally places a child in [an unapproved] program because the school has not offered an appropriate IEP.”[14]

Parents argue that the case cited by the District, Lincoln Public Schools, BSEA #2007623 (Figueroa, 2020) “has notable distinctions from [their own]. First, in that case, the district followed the legislation and explored a range of placements for the child within the team process. Second, a suitable DESE approved program was available and the student had been admitted. In [the instant matter], neither of these two things are true and so that ruling is unpersuasive….”

In Lincoln Public Schools, the school offered the student placement at Landmark for the student’s 5th grade year. The parents challenged the appropriateness of the proposed placement and unilaterally placed the student at Carroll, thereafter seeking reimbursement for said unilateral placement. The parents argued that it was crucial for the student to remain at Carroll in order to continue to meet with educational success. Moreover, they argued that Carroll was the only school that could meet Student’s needs and that the student should remain at Carroll through his eighth grade year before he transitioned to any other school. However, Hearing Officer Rosa Figueroa concluded that the parents’ “arguments regarding the long-term negative impact of Student’s switching schools vis-a-vis his ability to access his education and maintain/build community, [was] not persuasive and insufficient to overcome the appropriateness of the Landmark placement…. None of Parents’ arguments justifie[d] setting aside the well-conceived mechanism developed by DESE to assure the level of accountability the IDEA requires to ensure that eligible students receive a FAPE.”

Parents’ argument that the instant matter is distinguishable from Lincoln Public Schools because Arlington has not “explored a range of placements for the child within the team process” is unpersuasive because Arlington is not required to explore placement options in each case where parents disagree with a proposed placement.  It is furthermore unclear whether Parents, in the instant matter, assert either that  are no other available DESE-approved options for Student or  that they did not have “an opportunity to explore a range of appropriate placements,” an exploration that “would have also provided [them] with an opportunity to pursue approval of a non-approved program if no other programs could meet [Student’s] needs.” Nevertheless, Parents state:

“When the district unilaterally denied [their] proposal for out of district placement, [they]… ultimately made the decision to place [Student] at Carroll. We had explored other DESE approved options and deemed Carroll to be the only option that could provide [Student] with an appropriate education in light of her unique circumstances.”

Nevertheless, even if Parents could demonstrate that Arlington’s IEP was inappropriate and that there were no available DESE-approved options when they placed Student, all I could order is reimbursement. Even if I take as true “the allegations of the complaint, as well as such inferences as may be drawn therefrom in [Parents’] favor,”[15] as I am required to do, I could not order “the district to draft an IEP indicating placement of [Student] at Carroll School and extended school year (Carroll Summer) with ‘stay put’ rights” or “[i]n the alternative to #2, order the district to reimburse for tuition prospectively” at Carroll School. Rather, the relief would be to order Arlington to create or locate  a DESE-approved placement in accordance with 603 CMR 28.06(3)(d) or, if no approved placement can be identified, order the District to “request assistance from the Department” for the use of an unapproved program in accordance with 603 CMR 28.06(e).[16]  As such, Parents’ claim for prospective placement at and/or funding for Carroll School must be dismissed with prejudice.

I can, however, as discussed above, order reimbursement for actual costs related to Parents’ unilateral placement of Student at Carroll if I find that the District’s proposed program did not provide a FAPE.[17] Therefore such claim survives dismissal.

Parents’ argument that despite their pro se status, they “have costs” which they believe  should be reimbursable as they “have been denied by the district an opportunity to resolve [their] dispute through a method other than due process,” is also unpersuasive. I have no authority to reimburse Parents for experts’ or attorneys’ fees. 34 CFR 300.517 provides:

“(a) In general. (1) In any action or proceeding brought under section 615 of the Act, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to—

  1. The prevailing party who is the parent of a child with a disability;
  1. To a prevailing party who is an SEA or LEA against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or
  1. To a prevailing SEA or LEA against the attorney of a parent, or against the parent, if the parent’s request for a due process hearing or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.”

Under the IDEA, “prevailing parties” in administrative proceedings must seek attorney’s fees in the district court after these proceedings have concluded.[18] “Administrative hearing officers cannot award attorneys’ fees under the IDEA. When the parties resolve their dispute through administrative procedures, therefore, the prevailing party may bring an action in federal court solely to recover attorneys’ fees.”[19] Hence, a party “may file an independent suit in the district court to recover attorneys’ fees from an IDEA administrative proceeding and [] such suit is, in fact, the only means by which a party may recover attorneys’ fees for the administrative proceedings … because the IDEA only authorizes the courts, and not the administrative hearing officer, to award the attorneys’ fees.”[20]   As such, I have no authority to order reimbursement of attorneys’ fees.

Moreover, with respect to Parents’ request for expert fees, in Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006), the Supreme Court explained that

“[t]he governing provision of the IDEA, 20 U.S.C. § 1415(i)(3)(B), provides that ‘[i]n any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs’ to the parents of ‘a child with a disability”’ who is the ‘prevailing party.’ While this provision provides for an award of ‘reasonable attorneys’ fees,’ this provision does not even hint that acceptance of IDEA funds makes a State responsible for reimbursing prevailing parents for services rendered by experts.”[21]

As such, neither the BSEA nor the courts have authority to grant reimbursement of experts’ fees to Parents.[22] Parents’ claims as to experts’ and attorneys’ fees must be dismissed with prejudice.

Parents’ request for lunch reimbursement is similarly outside my jurisdiction. Parents assert that “Lunch is free for all students in the Arlington Public School system. Carroll does not have a lunch program and we have to provide all lunches ourselves. It is our claim that lunch, like transportation (and nursing), represent a portion of the financial risk we undertook in placing [Student] at the Carroll School. They should be weighed in a similar manner.”

Because the IDEA defines the term “free appropriate public education” to include “special education and related services” that “are provided in conformity with [the IEP],” a material failure to provide a service contained in an IEP can constitute a substantive violation of the IDEA.[23] Although the First Circuit has yet to address whether the provision of free meals is an “educational or related service” as covered by the IDEA, in C.D. v. New York City Dep’t of Educ., No. 05CIV.7945(SHS), 2009 WL 400382, at *4–6 (S.D.N.Y. Feb. 11, 2009), the court concluded that the provision of free meals is not an “educational or related service” because the parents in that case failed to identify any “unique need” that would require their child to be served free meals.[24] Similarly, in Deron Sch. of New Jersey, Inc. v. U.S. Dep’t of Agric., No. CIV.A. 09-3477 KSH, 2012 WL 1079068, at *23–24 (D.N.J. Mar. 30, 2012), the Court concluded that “the term ‘related services’ is aimed at ensuring that disabled students receive the special treatment that they need. It does not include matters like meals and nutrition, which all students require to succeed in school, regardless of disability.[25] Here, too, as Parents have failed to identify any “unique need” that would require Student to be served meals at public expense, the BSEA does not have jurisdiction to order that the school district reimburse the Parents for the cost of Student’s lunch, and such claim must be dismissed with prejudice.

ORDER:

The District’s Motion is ALLOWED, in part, and DENIED, in part. Specifically, the matter will proceed on the following issue: Whether Arlington Public Schools violated Student’s rights under IDEA and MGL c. 71B by failing to find Student eligible prior to February 2023 and/or by failing to propose IEPs and placements during the period of February 2023 until the filing of the complaint that were/are reasonably calculated to provide Student with a FAPE. All claims relative to prospective placement at Carroll School or reimbursement for prospective placement at Carroll School are hereby dismissed with prejudice. In addition, claims relevant to reimbursement of experts’ and attorney’s fees as well as for Student’s lunch are hereby dismissed with prejudice.

By the Hearing Officer:

/s/ Alina Kantor Nir 

Alina Kantor Nir
Dated:  September 30, 2024

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF FINAL BSEA ACTIONS AND RIGHTS OF APPEAL

Effect of BSEA Decision, Dismissal with Prejudice and Allowance of Motion for Summary Judgment

20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Similarly, a Ruling Dismissing a Matter with Prejudice and a Ruling Allowing a Motion for Summary Judgment are final agency actions. If a ruling orders Dismissal with Prejudice of some, but not all claims in the hearing request, or if a ruling orders Summary Judgment with respect to some but not all claims, the ruling of Dismissal with Prejudice or Summary Judgment is final with respect to those claims only. 

Accordingly, the Bureau cannot permit motions to reconsider or to re-open either a Bureau decision or the Rulings set forth above once they have issued. They are final subject only to judicial (court) review.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay.  This means that the decision must be implemented immediately even if the other party files an appeal in court, and implementation cannot be delayed while the appeal is being decided.  Rather, a party seeking to stay—that is, delay implementation of– the decision of the Bureau must  request and obtain such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” while a judicial appeal of the Bureau decision is pending, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program.” 

Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau.  School Committee of Burlington v. Massachusetts Department of Education, 471 U.S. 359 (1985).  Otherwise, a party seeking to change the child’s placement while judicial proceedings are pending must ask the court having jurisdiction over the appeal to grant a preliminary injunction ordering such a change in placement. Honig v. Doe, 484 U.S. 305 (1988); Doe v. Brookline, 722 F.2d 910 (1st Cir. 1983).

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Elementary and Secondary Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).

Rights of Appeal

Any party aggrieved by a final agency action by the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review. 20 U.S.C. s. 1415(i)(2).

An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).

Confidentiality

In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing

Company, 898 F.2d 1371 (8th. Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

Record of the Hearing

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.

[1] As Parents’ Motion in Opposition was filed on Saturday, September 28, 2024, it is deemed to have been filed on the next business day, September 30, 2024.

[2] Hearing Officers are bound by the BSEA Hearing Rules for Special Education Appeals (Hearing Rules) and the Standard Rules of Adjudicatory Practice and Procedure, 801 Code Mass Regs 1.01.

[3] Iannocchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).

[4] Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995).

[5] Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011) (internal quotation marks and citations omitted).

[6] See 34 C.F.R. §300.507(a)(1).

[7] Limited exceptions exist that are not here applicable.

[8] 603 CMR 28.08(3)(a).

[9] See In Re: Student v. Bay Path Reg’l Vocational Tech. High Sch., BSEA # 18-05746 (Figueroa, 2018).

[10] In Re: Georgetown Pub. Sch., BSEA #1405352 (Berman, 2014).

[11] See Iannocchino, 451 Mass. at 636.

[12] T.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 580 (3d Cir. 2000); see Antkowiak v. Ambach, 838 F.2d 635, 638 (2d Cir.1988) (rejecting placement in an unapproved school).

[13] See, e.g., Manchester–Essex Reg’l Sch. Dist. Sch. Comm. v. Bureau of Special Educ. Appeals of The Massachusetts Dep’t of Educ., 490 F. Supp. 2d 49, 54–55 (D. Mass. 2007) (“[a]s a matter of law, the School District was entitled to refuse the unapproved and unaccredited program for D.T.’s IEP”); Tewksbury School Committee v. Bureau of Special Education Appeals, et al., Civil Action No. 08-11172-GAO (Mass. 2009) (finding that the district was not required to amend the student’s IEP to reflect the Kumon Center as the service provider nor to pay the Kumon Center directly); Z.H. v. New York City Dep’t of Educ., 107 F. Supp. 3d 369, 376 (S.D.N.Y. 2015) (“fact that a school district may consider placement in a private school does not mean that it may place the student at any private school, including one that does not meet the Commissioner’s approval standards”); Dobbins v. D.C., No. CV 15-0039 (ABJ), 2016 WL 410995, at *5 (D.D.C. Feb. 2, 2016) (agreeing that as parents had “not established that none of the OSSE-approved nonpublic special education schools or programs would be able to implement a full-time residential IEP for [A.D.] [and] [] because [Solstice] lacks a valid Certificate of Approval from OSSE, pursuant to D.C. Code § 38-2561.03(b)(2),” the hearing officer was correct in denying parents’ request that the hearing officer “order DCPS to fund [A.D.’s] placement at [Solstice]”); In Re: Student v. Newburyport (Ruling On Newburyport Public Schools’ [Partial] Motion To Dismiss Parents’ Tort, Retaliation, “Credibility,” And Constitutional Claims,  On Newburyport Public Schools’ Motion For Summary Judgment, And On Parents’ [Partial] Motion For Summary Judgment), BSEA # 2411365 (Kantor Nir, 2024) (“As such, the Hearing Officer cannot order a school district to fund an unapproved program where an appropriate approved one is available….Here, an approved residential program could be available to Student and must be given preference”); Tewksbury Public Schools, BSEA # 1402344 (Putney-Yaceshyn, 2015) (given Student’s acceptance at an approved residential school, Tewksbury could not be permitted to use public funds to place the student residentially in a non-educational residential placement); In Re: Hamilton-Wenham Regional School District, BSEA # 07-2103 (Putney-Yaceshyn, 2007) (“Although Student believes that only OPI can provide him with the services he requires, a belief not supported by a scintilla of expert evidence, OPI is not an option for him. Hamilton-Wenham is legally precluded from providing public funds for a placement that is neither approved by the Commonwealth of Massachusetts nor an educational program”).

[14] See Manchester-Essex Reg’l Sch. Dist. Sch. Comm., 490 F. Supp. 2d at 54.

[15] Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995).

[16] This does not mean that a school district cannot, through informal resolution with parents, arrange to make parents whole for costs of an unapproved program.

[17] See 34 CFR 300.148 (c); see also Sch. Comm. of Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359, 370 (1985) (“In a case where a court determines that a private placement desired by the parents was proper under the Act and that an IEP calling for placement in a public school was inappropriate, it  seems clear beyond cavil that ‘appropriate’ relief would include a prospective injunction directing the school officials to develop and implement at public expense an IEP placing the child in a private school”).

[18] See Patrick G. v. Harrison Sch. Dist. No. 2, 40 F.4th 1186, 1209 (10th Cir. 2022).

[19] Zipperer v. Sch. Bd. of Seminole Cnty., Fla., 891 F. Supp. 583, 586 (M.D. Fla. 1995), vacated sub nom. Zipperer v. Sch. Bd. of Seminole Cnty., Fla., 111 F.3d 847 (11th Cir. 1997) (internal citations omitted).

[20] Bd. of Educ. of Oak Park v. Nathan R., 199 F.3d 377, 381 & n.10 (7th Cir. 2000) (internal citations and quotations omitted); see also R. M-G v. Bd. of Educ. for the Las Vegas City Schs., 645 F. App’x 672, 677 (10th Cir. 2016) (unpublished) (“The IDEA clearly allows the pursuit of a lawsuit solely to recover fees”).

[21] 548 U.S. at 297.

[22] Id. at 300.

[23] See Pollack v. Reg’l Sch. Unit 75, No. 2:13-CV-109-NT, 2015 WL 1947315, at *14 (D. Me. Apr. 29, 2015).

[24] C.D. v. New York City Dep’t of Educ., No. 05CIV.7945(SHS), 2009 WL 400382, at *4–6 (S.D.N.Y. Feb. 11, 2009).

[25] Id. at 2009 WL 400382, at *4–6.

Updated on October 1, 2024

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