MEMORANDUM AND ORDER

GEORGE DANIELS, District Judge

This matter is before the Court on cross-motions for summary judgment as to the State Education Department State Review Officer's (SRO) award of tuition reimbursement to Defendant. For the reasons set forth below, Plaintiff's motion for summary judgment reversing the award is granted, and Defendant's motion is denied.

I. Background

Many facts are undisputed. Defendant's son, Gilbert F. ("student") has attended the Stephen Gaynor School ("Gaynor"), a private school, since kindergarten. On June 23, 1999, the Board of Education's Committee on Special Education ("CSE") conducted an annual review to determine the student's appropriate educational placement for the 1999-2000 school year. Seven people attended the CSE meeting, including an educational evaluator who signed the Individualized Education Program (IEP) as the special education teacher. The student's actual special education teacher from Gaynor was unavailable because she was in the hospital.

Following a review of several evaluations conducted by the CSE in preparation for the student's annual report, the CSE recommended that the student continue to be classified as learning disabled and that he be placed in a Modified Instructional Services-I ("MIS-I") program with a teacher ratio of 15:1. The CSE further recommended that the student receive speech/language therapy in a group twice per week and counseling in a group once per week. The student's Final Notice of Recommendation was sent to Defendant on July 29, 1999, which placed the student at P.S. 871, a public school.

Nonetheless, Defendant continued the student's placement at Gaynor for the 1999-2000 school year and requested an impartial hearing to seek reimbursement for the cost of the student's tuition. On April 6, 2000, the Impartial Hearing Officer ("IHO") ordered the Board to reimburse Defendant for the cost of the student's tuition at Gaynor. The plaintiff, in turn, appealed to the State Education Department SRO, who affirmed the IHO's award of tuition reimbursement on grounds that the CSE was not validly constituted and, thus, resulted in an inappropriate placement.

Plaintiff now seeks to reverse the March 30, 2001 decision of the SRO granting Defendant tuition reimbursement on grounds that: (1) the IDEA precludes an award of tuition reimbursement in instances where a student has not previously received special education services from a public agency; and (2) in any event, the CSE was properly constituted.

II. Discussion

A. Standard of Review

"Federal courts assess IDEA petitions based on the `preponderance of the evidence developed at the administrative proceedings and any further evidence presented by the parties.'"M.S. v. Bd. of Educ., 231 F.3d 96, 102 (2d Cir. 2000) (quotingWalczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122-23 (2d Cir. 1998). However, this assessment is not an "invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review."Bd. of Educ. v. Rowley, 458 U.S. 176, 206 (1982). When reviewing whether a proposed IEP is appropriate, the district court must give "due weight" to the findings of a state administrative proceeding. Id.

"[The Second Circuit] has acknowledged that `Rowley requires that federal courts defer to the final decision of state authorities.'" Muller v. Comm. on Special Educ., 145 F.3d 95, 102 (2d Cir. 1998) (quoting Karl v. Bd. of Educ., 736 F.2d 873, 877 (2d Cir. 1984). "[D]eference is owed to state and local agencies having expertise in the formulation of educational programs for the handicapped." Muller, 145 F.3d at 103 (quotingBriggs v. Bd. of Educ., 882 F.2d 688, 693 (2d Cir. 1989)).

Nonetheless, as Defendant acknowledges here, the Second Circuit has differentiated between those matters where the court has been called upon to judge whether a child has been offered a free and appropriate education, and matters of statutory interpretation. The line of cases that calls for deference to administrative proceedings addresses only the former situation. In contrast, where the issue facing the court is one of statutory interpretation, the district court may review the matter de novo.See Muller, 145 F.3d at 103 (approving of district court's de novo review of whether a school district appropriately classified a child's disability status because resolution of the issue involved interpretation of the IDEA and applicable regulations). Under the latter circumstances, "state administrative officials [are] in no better position than the district court to make conclusions." Id.

Here, as in Muller, it is not the underlying facts that are in dispute, but rather the legal conclusions to be drawn from those facts. As a result, the concern that motivated the court inRowley, of courts substituting their own notions of sound educational policy for those of school authorities, is not present. See Rowley, 458 U.S. at 206. As the issues here are ones of statutory interpretation, the SRO's determinations are to be reviewed de novo. B. Defendant's Eligibility for Tuition Reimbursement

The Board of Education argues that Defendant is barred from tuition reimbursement under the IDEA because his child did not previously receive special education under the authority of a public agency. Defendant argues that despite the plain language of the statute to the contrary, he should be permitted to receive tuition reimbursement because to hold otherwise would defeat the purpose of the IDEA.

In School Committee of Burlington v. Department of Education, the Supreme Court set forth the circumstances under which a parent who unilaterally enrolled a child in a private school could receive tuition reimbursement. 471 U.S. 359, 369-70. The Court did not limit the remedy to parents of children who previously received special education in a public school. However, Burlington predated the amendments to the IDEA made in 1997.

The 1997 amendments to the IDEA provide, in pertinent part:

If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private elementary or secondary school, without the consent of or referral by the public agency, a court or hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment. (emphasis added).

Interpretation of this provision is an issue of first impression in this circuit. The clear implication of the plain language, however, is that where a child has not previously received special education from a public agency, there is no authority to reimburse the tuition expenses arising from a parent's unilateral placement of the child in private school.

The Court of Appeals for the First Circuit reached this conclusion in Greenland School District v. Amy N. 358 F.3d 150, 158-160 (2004). There, the parents of a child who had never received special education services in public school sought tuition reimbursement after having unilaterally removed the child from public school and placed her in private school. As in the instant case, the hearing officer ordered the school district to reimburse the child's tuition. However, in affirming the district court's reversal of the hearing officer's holding, the Court of Appeals concluded that the amended provision limits tuition reimbursement to children "who have previously received `special education and related services' while in the public school system (or perhaps those who at least timely requested such services while the child is in public school)." Id. at 159-160.

As neither threshold is satisfied here, the SRO's holding awarding tuition reimbursement to Defendant was erroneous.

Defendant advocates departure from the plain language of the statute on grounds that adhering to its literal interpretation would defeat the statute's very purpose. This contention is without merit. "Only the most extraordinary showing of a contrary intention from the legislative history would justify interpretive departure from a statute's plain language." O'Connell v. Hove, 22 F.3d 463, 470 (2d Cir. 1994). Here, however, evidence of congressional intent from the legislative history is consistent with the plain meaning of the text. The relevant House Report from the Committee on Education and the Workforce states:

Section 612 [ 20 U.S.C. § 1412] also specifies that parents may be reimbursed for the cost of a private educational placement under certain conditions (i.e., when a due process hearing officer or judge determines that a public agency had not made a free appropriate public education available to the child, in a timely manner, prior to the parents enrolling the child in that placement without the public agency's consent). Previously, the child must have had received special education and related services under the authority of a public agency.

House Report No. 105-95 (emphasis added).

As Plaintiff suggests, the provision ensures that a parent's rejection of a public school placement is not based on mere speculation as to whether the recommended public school placement would have been inappropriate. Therefore, it cannot be said that adherence to the plain language would defeat the purpose of the IDEA to provide every child with a disability a free and appropriate public education. See 20 U.S.C. § 1400(d)(1)(A).

Finally, Defendant relies on an opinion given by the Office of Special Education Programs ("OSEP") in response to the question of whether the 1997 Amendments to the IDEA preclude private school tuition reimbursement for children who had not previously received special education from a public agency. OSEP concluded that it did "not appear that [this] question . . . [was] answered by § 612(a)(10)(C) of IDEA '97." Letter to Luger, 33 I.D.E.L.R. 126 (March 19, 1999).

"[D]eference to an OSEP policy letter may be appropriate where statutory language is ambiguous." St. Johnsbury Acad. v. D.H., 240 F.3d 163, 171 (2d Cir. 2001) (quoting Honig v. Doe, 484 U.S. 305, 325 n. 8 (1988). However, "if the intent of Congress is clear," a court reviewing an agency's construction of a statute that it administers "must give effect to the unambiguously expressed intent of Congress." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). Here, where there is no ambiguity in the statutory language, deference to the OSEP letter would be inappropriate. Therefore, this Court reaches the same conclusion as to the meaning of 20 U.S.C. § 1412(a)(10)(C) that the First Circuit reached in Amy N. See 358 F.3d at 158-160.

As the IDEA bars tuition reimbursement in the instant case, it is not necessary for the Court to address the issue of whether the educational evaluator properly served as the child's special education teacher such that the CSE was validly constituted.

III. Conclusion

For the reasons set forth above, Plaintiff's motion for summary judgment reversing the SRO's grant of tuition reimbursement to Defendant is granted, and Defendant's motion is denied. The Clerk is directed to close this case.

SO ORDERED.