K.C. v. Chappaqua Cent. Sch. Dist.

Full title: K.C., individually and on behalf of J.C.T., M.T., individually and on…

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Dec 18, 2019

No. 16-CV-3138 (KMK) (S.D.N.Y. Dec. 18, 2019)

Opinion

No. 16-CV-3138 (KMK)

12-18-2019

K.C., individually and on behalf of J.C.T., M.T., individually and on behalf of J.C.T., and J.C.T., on behalf of himself, Plaintiffs, v. CHAPPAQUA CENTRAL SCHOOL DISTRICT, Defendant.

Appearances: Rachel S. Asher, Esq. Asher Gaughran, LLP Armonk, NY Counsel for Plaintiffs Mark C. Rushfield, Esq. Shaw, Perelson, May & Lambert, LLP Poughkeepsie, NY Counsel for Defendant

KENNETH M. KARAS, United States District Judge

OPINION & ORDER

Appearances:

Rachel S. Asher, Esq.
Asher Gaughran, LLP
Armonk, NY
Counsel for Plaintiffs Mark C. Rushfield, Esq.
Shaw, Perelson, May & Lambert, LLP
Poughkeepsie, NY
Counsel for Defendant KENNETH M. KARAS, United States District Judge:

Plaintiffs K.C. and M.T. ("Plaintiff Parents"), and their son J.C.T. ("J.C.T.") (collectively, "Plaintiffs"), bring this Action alleging that Defendant Chappaqua Central School District ("Defendant" or the "District") denied J.C.T. a free and appropriate public education ("FAPE") at Bell Middle School ("Bell") for the 2011-12 and 2012-13 school years, in violation of the Individuals With Disabilities Education Act (the "IDEA"), 20 U.S.C. § 1415 et seq., New York Education Law §§ 4401, 4404, 4410, and Section 504 of the Rehabilitation Act ("Section 504"), 29 U.S.C. § 794 et seq., and discriminated against J.C.T. in violation of Section 504 and Title II of the Americans With Disabilities Act (the "ADA"), 42 U.S.C. § 12132. (See Am. Compl. (Dkt. No. 52).) Currently before the Court is Defendant's Motion for Summary Judgment (the "Motion"). For the reasons discussed below, the Motion is granted.

I. Background

The general factual and procedural background of this Action has been discussed in detail by the Court in its previous Opinions & Orders on this case, so the Court assumes familiarity with the general issues in dispute. (See Op. & Order on Def.'s Mot. for Judgment on the Pleadings ("2017 Op.") 2-7; Op. & Order on Def.'s Mot. for Summ. J. on the Statute of Limitations ("2018 Op.") 2-23 (Dkt. Nos. 40, 88).) The Court supplements certain factual issues and the procedural background below and will address other facts as needed throughout this Opinion & Order. The Court refers to the Parties' Rule 56.1 Statements and Counterstatements and underlying exhibits to inform its understanding of the facts. (See Def.'s Rule 56.1 Statement in Supp. of Mot. ("Def.'s 56.1"); Pls.' Counterstatement to Def.'s 56.1 ("Pls.' Counter 56.1"); Pls.' 56.1 Statement of Additional Facts in Opp'n to Mot. ("Pls.' 56.1"); Def.'s Counterstatement to Pls.' 56.1 ("Def.'s Counter 56.1"); Def.'s Reply to Pls.' Counter 56.1 ("Def.'s Reply 56.1") (Dkt. Nos. 140, 142, 143, 153, 154).)¹

1 Local Civil Rule 56.1(a) requires the moving party to submit a "short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." The nonmoving party, in turn, must submit "a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short[,] and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried." Local Civ. R. 56.1(b). "If the opposing party . . . fails to controvert a fact set forth in the movant's Rule 56.1 statement, that fact will be deemed admitted pursuant to the local rule." Baity v. Kralik, 51 F. Supp. 3d 414, 418 (S.D.N.Y. 2014) (citation and quotation marks omitted); see also T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009) (same).
Where the Parties identify disputed facts but with semantic objections only or by asserting irrelevant facts, these purported disputes, which do not actually challenge the factual substance described in the relevant paragraphs, the Court will not consider them as creating disputes of fact. See Baity, 51 F. Supp. 3d at 418 ("Many of [the] [p]laintiff's purported denials—and a number of his admissions—improperly interject arguments and/or immaterial facts in response to facts asserted by [the] [d]efendants, often speaking past [the] [d]efendants' asserted facts without specifically controverting those same facts."); id. ("[A] number of [the] [p]laintiffs' purported denials quibble with [the] [d]efendants' phraseology, but do not address the factual substance asserted by [the] [d]efendants."); Pape v. Bd. of Educ. of Wappingers Cent. Sch. Dist., No. 07-CV-8828, 2013 WL 3929630, at *1 n.2 (S.D.N.Y. July 30, 2013) (explaining that the plaintiff's 56.1 statement violated the rule because it "improperly interjects arguments and/or immaterial facts in response to facts asserted by [the] [d]efendant, without specifically controverting those facts," and "[i]n other instances, . . . neither admits nor denies a particular fact, but instead responds with equivocal statements"); Goldstick v. The Hartford, Inc., No. 00-CV-8577, 2002 WL 1906029, at *1 (S.D.N.Y. Aug. 19, 2002) (noting that the plaintiff's 56.1 statement "does not comply with the rule" because "it adds argumentative and often lengthy narrative in almost every case[,] the object of which is to 'spin' the impact of the admissions [the] plaintiff has been compelled to make").
In some instances, the Parties identify actual disputes of fact but fail to cite the supporting portions of the record; this also could permit the Court to deem the challenged facts undisputed. See Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (explaining that the court is not required to search the record for genuine issues of material fact that the party opposing summary judgment failed to bring to the court's attention); Baity, 51 F. Supp. 3d at 418 (collecting cases holding that "responses that do not point to any evidence in the record that may create a genuine issue of material fact do not function as denials, and will be deemed admissions of the stated fact" (citations, alteration, and quotation marks omitted)).
Therefore, where the Court cites to only one of the Parties' Rule 56.1 Statements or Counterstatements, that fact is materially undisputed unless noted otherwise.

A. Factual Background

1. Class Attendance

One of the issues highlighted in the Parties' papers is the question of J.C.T. allegedly missing a significant amount of class time at school. Accordingly, the Court summarizes some of the undisputed and disputed facts on this issue.

J.C.T. testified that his disabilities, which include early onset bipolar disorder and Attention Deficit Hyperactivity Disorder ("ADHD"), (see Def.'s 56.1 ¶ 17; Pls.' 56.1 ¶ 1), affected his ability to remain in class during the 2011-12 school year by triggering him to leave some of his classes when he was asked to do classwork, (Def.'s 56.1 ¶ 18). J.C.T.'s Individualized Education Plan ("IEP") for the 2011-12 school specifically recommended that J.C.T. take breaks from the classroom, especially as "levels of frustration escalate or fatigue sets in." (Aff. of Committee on Special Education ("CSE") Chairperson Elizabeth Wright ("Wright") ("Wright Aff.") Ex. K ("Feb. 15, 2012 CSE Meeting Notes and IEP") 10 (Dkt. No. 127-11).)²

2 Due to varying native pagination, the Court refers to the ECF page numbers, stamped in the upper right-hand corner of each page, for this exhibit.

During the 2011-12 school year, J.C.T. commonly left classrooms after the instructional portion had ended and just before he was required to do group or individual schoolwork. (Def.'s 56.1 ¶¶ 19, 21.) J.C.T. would frequently go to the bathroom, the nurse's office, Guidance Counselor Jason Sclafani's ("Sclafani") office, or Special Education Teacher Clint Keegan's ("Keegan") classroom. (Id. ¶ 22.) When J.C.T. left the classroom during the 2011-12 school year, his teaching assistant would either follow him or search for him at his usual locations. (Id. ¶ 25.)³ Although Defendant contends that, during his absences, J.C.T. would often do make-up work or schoolwork with Keegan or a teaching assistant, Plaintiffs, pointing repeatedly to the same quotes from J.C.T.'s deposition, counter that J.C.T. believed that this "teaching" was "rarely successful" and that he would rarely do the work that was assigned before he left the classroom. (See Pls.' Counter 56.1 ¶¶ 30-31.) On this point, Plaintiffs also repeatedly point to the testimony of Keegan at the Impartial Hearing Officer ("IHO") proceedings, where he testified that he did not recall what J.C.T. typically did when he left class, whether excused or unexcused. (Id.) Sclafani contends that he would usually get a call from the school nurse or from Keegan about J.C.T's wandering and would go find J.C.T. and try to talk to him. (Def.'s 56.1 ¶ 32.) Sclafani avers that, in those circumstances, he would usually obtain the requisite classwork from the relevant teacher and bring that material down to J.C.T. in an attempt to either get J.C.T. to return to the academic classroom or to do the work, often in Keegan's classroom. (Sclafani Aff. in Supp. of Mot. ("Sclafani Aff.") ¶ 9 (Dkt. No. 129).) Plaintiffs dispute this assertion but only cite to the same segments of J.C.T.'s testimony where he generally testified that "he wasn't being taught" while he was out of his academic classrooms and that it was rare that he "would not have done the work" assigned to him outside of the classroom. (Pls.' Counter 56.1 ¶ 33.) Stein-Dince affirms that she would usually follow J.C.T. out of the classroom and, if she could not get J.C.T. to return after a few minutes, she and J.C.T. would usually sit down in the hallway and try to do the schoolwork until the end of that class period, (see Def.'s 56.1 ¶¶ 35-36), but Plaintiffs partially dispute this, once again pointing to the same testimony of J.C.T and Keegan as discussed above, (see Pls.' Counter 56.1 ¶ 36).

3 J.C.T.'s teaching assistant from the beginning of the 2011-12 school year in September 2011 to early February 2012 was Amy Kaufman ("Kaufman"). Kim Stein-Dince ("Stein-Dince") was J.C.T.'s teaching assistant for the rest of the 2011-12 school year. (See Pls.' 56.1 ¶¶ 120-21.)

Plaintiffs contend that J.C.T. was reported to have 197 excused and unexcused absences during the 2011-12 school year. (Pls.' 56.1 ¶ 222.) The Parties acknowledge that there were problems with the accuracy of the information recorded for period-by-period attendance for the 2011-12 school year, (see Def.'s Counter 56.1 ¶ 222; Pls.' Mem. in Opp'n to Mot. ("Pls.' Mem.") 12 (Dkt. No. 141)), but Defendant argues that this suggests that the number of true absences was below 197, (Def.'s Counter 56.1 ¶ 222), while Plaintiffs argue that this suggests that the number of true absences was possibly above 197, (Pls.' Mem. 12). Defendant posits that this number, which comes from the Student Period Attendance Detail for the 2011-12 school year, (see Aff. of Cary Vigilante ("Vigilante") ("Vigilante Aff.") Ex. A ("2011-12 Period Attendance") (Dkt. No. 133-1)), exaggerates the amount of time that J.C.T. spent unattended because (1) teachers would mark him absent even if he was with the guidance counselor or school nurse, which should have been noted as an excused absence or delay, (Vigilante Aff. ¶ 3 (Dkt. No. 133)); (2) J.C.T. was sometimes picked up from school by his parents to attend tutoring sessions for his ninth period, which was an excused absence but not always designated as such, (id. ¶ 19); (3) J.C.T was sometimes picked up from school because of illness, which was an excused absence but not always designated as such, (id.); and (4) there were multiple recording errors apparent from the face of the records, (see id. ¶¶ 5-18; see also Def.'s Counter 56.1 ¶ 222). Defendant argues that an "accurate examination" of the 2011-12 Period Attendance report "reveals that there were no more than about 12 unexcused absences of J.C.T. in total from J.C.T.'s core academic class periods during days in which he was in attendance at school" for the 2011-12 school year. (Def.'s Counter 56.1 ¶ 222 (citing to Aff. of Principal Martin Fitzgerald ("Fitzgerald") ("Fitzgerald Aff." ) ¶ 18 (Dkt. No. 135)).) Based on a total of 724 total core academic class sessions for the school year, Defendant claims that J.C.T. actually only missed less than 2% of core academic periods. (See Fitzgerald Aff. ¶ 20.) Even accounting for all excused and unexcused absences during days when he was in school, "as modified by [Vigilante's] [A]ffidavit," which sought to correct a number of purported recording errors, Fitzgerald claims that J.C.T. only missed 30 core academic class periods, indicative of a 4% absence rate for those classes, one that Fitzgerald does not consider to "reflect a pattern of unexcused absences" or "excessive absenteeism" from core academic classes. (See id. ¶¶ 21-22.)

Plaintiffs argue that the report actually underreports the amount of time that J.C.T. spent unattended because (1) Mallory Chinn ("Chinn"), a social studies teacher, wrote that she would not mark J.C.T. absent when the school nurse, Sclafani, or Keegan provided "advance notice" that J.C.T. would not be in class that day, (Chinn Aff. in Supp. of Mot. ("Chinn Aff.") ¶ 2 (Dkt. No. 136)); (2) Sclafani testified at the IHO Hearing that he "couldn't tell you where [J.C.T.] was each and every one of" the times J.C.T. was marked absent because "three years" later, "it's hard to recall where [J.C.T.] was then," (Pls.' 56.1 ¶ 225; Def.'s Counter 56.1 ¶ 225); (3) the school nurse allegedly reported that J.C.T. frequently came to the nurse's office without being accompanied by Sclafani or Keegan, although Plaintiffs do not cite to a source for this proposition, (Pls.' 56.1 ¶¶ 233-34); and (4) another teacher, Patricia Wolff ("Wolff"), did not report J.C.T. absent when she received "notice in advance" from Keegan that J.C.T was with Keegan, (Wolff Aff. in Supp. of Mot. ("Wolff Aff.") ¶ 6 (Dkt. No. 137)). Plaintiffs offer no proposed number outside of the number reported in the 2011-12 Period Attendance report as to what their estimates of J.C.T.'s actual absences were for the 2011-12 school year.

2. School Bus

During the 2011-12 school year, J.C.T. had been riding the school bus to and from school until February 7, 2012. (Def.'s 56.1 ¶ 198.) In early February 2012, J.C.T. was involved in an altercation with another student on the school bus. (Id. ¶ 199.) Although J.C.T. told K.C., J.C.T's mother, that J.C.T. was the victim of the assault, (id.), in reality, a video of the incident revealed that J.C.T. had been the aggressor, (Def.'s Counter 56.1 ¶ 210). As a result of this incident, K.C. attended a meeting with Assistant Principal Timothy Doyle ("Doyle"), where Doyle told K.C. that "it would be best" if J.C.T. did not take the bus for a while, and if J.C.T. did need to take the bus, J.C.T.'s parents should give advance notice so that they could try to have an aide on the bus. (Pls.' Counter 56.1 ¶ 199.) K.C. ultimately never asked for an aide to accompany J.C.T. on the bus because she believed it would subject J.C.T. to "name-calling." (Id. ¶ 200.)

Doyle affirms that he has never prohibited any Bell student from taking the school bus to or from school and has never told any Bell student's parent, including K.C., that their child was prohibited from taking the school bus to or from school. (Id. ¶ 201.) In fact, any involuntary removal from the bus for more than a few days would have required a disciplinary decision-making process, such as a formal suspension hearing, which never occurred as to J.C.T. (Id. ¶ 202.)

In an email dated March 26, 2012, K.C. asked Keegan whether J.C.T. could resume taking the school bus. (Id. ¶ 203.) In that email, K.C. wrote, "I wanted to follow up on our meeting at the beginning of February . . . . We had discussed [J.C.T.'s] then-recent behavior at school and on the bus and it was decided that [J.C.T.'s teaching assistant] would shadow him more closely . . . . I was also asked to bring [J.C.T.] to and pick him up from school rather than [J.C.T.] taking the bus, otherwise a [teaching assistant] would need to be on the school bus with [J.C.T.] As it is the end of March, I am wondering if [J.C.T.] may resume taking the school bus?" (Aff'n of Mark C. Rushfield, Esq. ("Rushfield Aff'n") Ex. HH ("2012 K.C. Bus Email") (Dkt. No. 126-34).) Keegan responded, stating "I cannot say definitively that I would have [J.C.T.] take the school bus home as this is a parenting decision. I can say that [J.C.T.] has been increasingly resistant to support over the last several days, indicating to me a need for a structured delivery to and from school. I hope this helps." (Rushfield Aff'n Ex. Y ("2012 Keegan Bus Email") (Dkt. No. 126-25).)

As of May 2012, J.C.T. sporadically, but rarely, rode the school bus; mostly, his parents would drive him to and/or from school. (Pls.' Counter 56.1 ¶ 208.) On the occasions that J.C.T. did take the bus home from school after April 16, 2012, he did so without any prohibitions or limitations imposed by the District or Bell. (Id. ¶ 209.)⁴,⁵

4 Although Plaintiffs purport to deny this statement, they only cite to the same line from Keegan's email referenced above, which does not contest the factual truth of Defendant's statement as to the conditions of J.C.T.'s bus rides on the few occasions during which he did take the school bus.

5 Defendant's 56.1 Statement writes that J.C.T. was able to take the school bus to or from school after April 16, 2016 without prohibitions or limitations imposed by the District. (See Def.'s 56.1 ¶ 209; Pls.' Counter 56.1 ¶ 209.) However, the Court construes 2016 to be a typographical error because in the cited source, K.C.'s February 28, 2019 Deposition Transcript, K.C. is clearly discussing the 2011-12 school year. (See Rushfield Aff'n Ex. H ("Def.'s 2019 K.C. Dep. Tr. Excerpt") 116-17 (Dkt. No. 126-8) ("Q: And when you had [J.C.T.] ride the bus, whatever direction it was, sometime after April 16^th 2012, did anybody preclude him from riding the bus, was he prohibited from doing so? A: No. I started having him take the bus occasionally, to see if there were any incidents. Q: And were there any? A: No. Q: And did you continue having him ride the bus on a regular basis after you found there were no incidents? A: I don't remember. I think it was mixed. Q: So sometimes he did, sometimes he didn't? A: Correct.").)

Indeed, K.C. herself affirms that J.C.T "was not forbidden from taking the bus." (Decl. of Rachel Asher, Esq. ("Asher Decl.") Ex. B ("K.C. Aff.") ¶ 52 (Dkt. No. 144-2).) However, K.C. stated that Doyle's statements "discouraged" K.C. from allowing J.C.T to take the bus, (id. ¶ 55), and that although Keegan told K.C. that it was "[her] decision," his email also appeared to express his own personal belief that J.C.T should not be riding the school bus, (id. ¶ 58).

B. Procedural History

On September 29, 2018, this Court issued an Opinion that declined to grant Defendant's Motion for Partial Summary Judgment Based on the Statute of Limitations (the "2018 Opinion"). (See 2018 Op. 40.) In that Opinion, the Court concluded that there were credible disputes as to Plaintiffs' knowledge or constructive knowledge of the underlying issues. (See id. at 35, 39.) Notably, the Court applied the summary judgment standard used for Rule 56 motions (as opposed to the altered procedure used in IDEA cases, discussed below) to resolve this issue. (See id. at 23-25.) In an earlier Opinion, the Court concluded that it owed no deference to the State Reviewing Officer's ("SRO") decision regarding the timeliness of Plaintiffs' claims as to the implementation of the 2011-12 IEP (the "2017 Opinion"). (See 2017 Op. 18-19.)⁶

6 Because the SRO considered May 27, 2012 the earliest possible day for accrual of timely claims and concluded that no tolling exception applied, the SRO refused to consider any IEP implementation claims beyond those that arose in the last month of the 2011-12 school year. (See Rushfield Aff'n Ex. C ("SRO Decision") 15 (Dkt. No. 126-3).)

Following the issuance of the 2018 Opinion, the Parties appeared for a Status Conference on November 9, 2018, where the Parties were instructed to file a proposed case management order. (See Dkt. (minute entry for Nov. 9, 2018).) The proposed case management order was adopted on November 29, 2018. (See Case Management Plan and Scheduling Order ("Case Management Order") (Dkt. No. 96).) The Parties appeared before Magistrate Judge Paul E. Davison for a Settlement Conference, but the case did not settle. (See Dkt. (minute entry for May 14, 2019).) Prior to the Settlement Conference, Defendant had already requested a Pre-Motion Conference to file the instant Motion, (see Dkt. No. 117), and a Motion Scheduling Order was adopted on June 6, 2019, (see Mot. Scheduling Order (Dkt. No. 124)).

On August 2, 2019, Defendant submitted its Motion and accompanying papers, including multiple affidavits. (See Not. of Mot.; Def.'s Mem. of Law in Supp. of Mot. ("Def.'s Mem.") (Dkt. Nos. 125, 139); see also Def.'s 56.1.) Plaintiffs then submitted their Opposition and accompanying papers on September 16, 2019. (See Pls.' Mem.; Pls.' 56.1; Pls.' Counter 56.1; see also Asher Decl. (Dkt. No. 144).) Defendant submitted its Reply papers on October 31, 2019. (See Reply Mem. of Law in Supp. of Mot. ("Def.'s Reply Mem.") (Dkt. No. 152); see also Def.'s Counter 56.1; Def.'s Reply 56.1.)

II. Discussion

A. Standards of Review

As Defendant is moving for both Rule 56 summary judgment as to Plaintiffs' Counts Three, Four, and Five (Plaintiffs' claims of discrimination under Section 504 and the ADA) and for IDEA-related summary judgment on Plaintiffs' Counts One, Two, and Three (the claims relating to the alleged denial of a FAPE), (see Def.'s Mem. 2), two separate legal standards apply when resolving the different issues presented in the instant Motion.⁷

7 Plaintiffs claim that "Defendant is silent on Plaintiffs' Third Cause of Action," (Pls.' Mem. 1-2), but this is clearly not true, as Defendant states, "The District also contends that [] Plaintiffs' claims under Section 504 and the ADA under the Third (in part), Fourth and Fifth Causes of Action in the Amended Complaint should be dismissed," and also refers to the Third Cause of Action in its arguments on the IDEA issues. (Def.'s Mem. 2, 12.) As Plaintiffs' Third Cause of Action refers to both the adequacy of J.C.T.'s IEPs and Section 504, both prongs of Defendant's overall argument cover the entirety of the Third Cause of Action. The substantive disposition of the underlying FAPE and Section 504 issues would inherently affect the outcome of Plaintiffs' Third Count as well. Therefore, the entirety of the Amended Complaint is at stake in the instant Motion.

1. Rule 56(a)

Summary judgment is appropriate where the movant shows that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir. 2014) (same). "In determining whether summary judgment is appropriate," a court must "construe the facts in the light most favorable to the non-moving party and . . . resolve all ambiguities and draw all reasonable inferences against the movant." Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quotation marks omitted); see also Borough of Upper Saddle River v. Rockland Cty. Sewer Dist. No. 1, 16 F. Supp. 3d 294, 314 (S.D.N.Y. 2014) (same). "It is the movant's burden to show that no genuine factual dispute exists." Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also Berry v. Marchinkowski, 137 F. Supp. 3d 495, 521 (S.D.N.Y. 2015) (same).

"However, when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim," in which case "the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (alteration and quotation marks omitted). Further, "[t]o survive a [summary judgment] motion . . . , [a nonmovant] need[s] to create more than a 'metaphysical' possibility that his allegations were correct; he need[s] to 'come forward with specific facts showing that there is a genuine issue for trial,'" Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir. 2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), "and cannot rely on the mere allegations or denials contained in the pleadings," Guardian Life Ins. Co. v. Gilmore, 45 F. Supp. 3d 310, 322 (S.D.N.Y. 2014) (quotation marks omitted); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) ("When a motion for summary judgment is properly supported by documents or other evidentiary materials, the party opposing summary judgment may not merely rest on the allegations or denials of his pleading . . . .").

"On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law." Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (quotation marks omitted). At this stage, "[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried." Brod, 653 F.3d at 164 (quotation marks omitted). Thus, a court's goal should be "to isolate and dispose of factually unsupported claims." Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (quotation marks omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).

When ruling on a motion for summary judgment, a district court should consider only evidence that would be admissible at trial. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998). "[W]here a party relies on affidavits . . . to establish facts, the statements 'must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated.'" DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012) (quoting Fed. R. Civ. P. 56(c)(4)); see also Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988) ("Rule 56 requires a motion for summary judgment to be supported with affidavits based on personal knowledge . . . ."); Baity v. Kralik, 51 F. Supp. 3d 414, 419 (S.D.N.Y. 2014) (disregarding "statements not based on [the] [p]laintiff's personal knowledge"); Flaherty v. Filardi, No. 03-CV-2167, 2007 WL 163112, at *5 (S.D.N.Y. Jan. 24, 2007) ("The test for admissibility is whether a reasonable trier of fact could believe the witness had personal knowledge." (quotation marks omitted)).

2. IDEA

The Court's inquiry under the IDEA is limited to addressing (1) whether the District "complied with the procedures set forth in the Act" and (2) whether the IEP "developed through the Act's procedures [was] reasonably calculated to enable the child to receive educational benefits." Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 206-07 (1982) (footnotes omitted). Unlike with an ordinary summary judgment motion, the existence of a disputed issue of material fact will not necessarily defeat a motion for summary judgment in the IDEA context. See T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir. 2009) (per curiam); G.B. ex rel. N.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 570 (S.D.N.Y. 2010) (same), aff'd, 486 F. App'x 954 (2d Cir. 2012). Instead, summary judgment in IDEA cases is "in substance an appeal from an administrative determination, not a summary judgment." Lillbask ex rel. Mauclaire v. Conn. Dep't of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005) (quotation marks omitted); see also G.B., 751 F. Supp. 2d at 570 (same). The Court's review therefore "requires a more critical appraisal of the agency determination than clear-error review but falls well short of complete de novo review." L.O. v. N.Y.C. Dep't of Educ., 822 F.3d 95, 108 (2d Cir. 2016) (quotation marks and italics omitted). Accordingly, the Court must "engage in an independent review of the administrative record and make a determination based on a preponderance of the evidence." M.H. v. N.Y.C. Dep't of Educ., 685 F.3d 217, 240 (2d Cir. 2012) (quotation marks omitted).

However, such review "is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review." Rowley, 458 U.S. at 206. "To the contrary, federal courts reviewing administrative decisions must give due weight to these proceedings, mindful that the judiciary generally lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy." M.H., 685 F.3d at 240 (quotation marks omitted). To merit deference, the IHO's and SRO's decisions must be "thorough and careful." S.C. v. Katonah-Lewisboro Cent. Sch. Dist., 175 F. Supp. 3d 237, 252 (S.D.N.Y. 2016) (quotation marks omitted). The quality of the decision can be judged on factors such as whether it is "well-reasoned" and "based on substantially greater familiarity with the evidence and the witnesses than the reviewing court." R.E v. N.Y.C. Dep't of Educ., 694 F.3d 167, 189 (2d Cir. 2012) (quotation marks omitted); see also L.O., 822 F.3d at 109 ("To merit deference, the SRO's or IHO's factual findings must be reasoned and supported by the record." (alteration and quotation marks omitted)). Additionally, the Second Circuit has instructed courts that deference to an SRO's decision is more appropriate when the substantive adequacy of an IEP, as opposed to the procedural adequacy, is at issue; when the decision involves a dispute over an appropriate educational methodology versus determinations regarding objective indications of progress; and when the district court's decision is based solely on the administrative record that was before the SRO. See M.H., 685 F.3d at 244.

Further, generally, "courts must defer to the reasoned conclusions of the SRO as the final state administrative determination." Id. at 246 (emphasis added); see also A.C. v. Bd. of Educ. of Chappaqua Cent. Sch. Dist., 553 F.3d 165, 171 (2d Cir. 2009) (noting that "[i]f the SRO's decision conflicts with the earlier decision of the IHO, the IHO's decision may be afforded diminished weight," because the court must "defer to the final decision of the state authorities" (quotation marks omitted)). However, if the Court concludes that

the SRO's determinations are insufficiently reasoned to merit . . . deference, and in particular where the SRO rejects a more thorough and carefully considered decision of an IHO, it is entirely appropriate for the court, having in its turn found the SRO's conclusions unpersuasive even after appropriate deference is paid, to consider the IHO's analysis.

M.H., 685 F.3d at 246. Therefore, this Court "must defer to the SRO's decision on matters requiring educational expertise unless it concludes that the decision was inadequately reasoned, in which case a better-reasoned IHO opinion may be considered instead." R.E., 694 F.3d at 189; see also C.L. v. N.Y.C. Dep't of Educ., No. 12-CV-1676, 2013 WL 93361, at *5 (S.D.N.Y. Jan. 3, 2013) ("[T]he Second Circuit [has] explained that the deference owed to an SRO's decision depends on the quality of that opinion, or its persuasiveness." (citation and quotation marks omitted)), aff'd, 552 F. App'x. 81 (2d Cir. 2014).

B. Analysis

1. Section 504 and ADA Claims

Although noting that the question of the accuracy of the SRO's statute of limitations determination is "still a live one before the Court," (Def.'s Mem. 1 n.2), Defendant now argues that, regardless of the time bar or the related exhaustion issues arising from the interplay between Plaintiffs' IDEA and discrimination claims, as to Counts Four and Five, Plaintiffs have failed to "establish a prima facie case of disparate treatment in comparison to non-disabled students based upon J.C.T.'s disability" or the lack of a reasonable accommodation. (Def.'s Mem. 2 (italics omitted).) In particular, Defendant argues, J.C.T. is unable to identify any "existing" program or practice from which he was excluded as a result of his disabilities, which is a necessary element and distinct from whether J.C.T. should have been provided with "substantively different services than those provided" through his IEPs. (Id. at 20.) As to Plaintiffs' argument that the deprivation of a FAPE rose to the level of discrimination under Section 504 or the ADA, Defendant argues that Plaintiffs have failed to identify the requisite additional elements of gross negligence of reckless indifference. (Id. at 21-22.) In resolving this portion of Defendant's Motion, the Court has examined the Parties' Memoranda and all the accompanying affirmations, affidavits, exhibits, and deposition transcripts.

The ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Similarly, Section 504 of the Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). To make out a prima facie case under either of these statutes, a plaintiff must show: "(1) [the] plaintiff is a qualified individual with a disability; (2) [the] plaintiff was excluded from participation in a public entity's services, programs[,] or activities or was otherwise discriminated against by [the] public entity; and (3) such exclusion or discrimination was due to [the] [plaintiff's] disability." B.C. v. Mount Vernon Sch. Dist., 837 F.3d 152, 158 (2d Cir. 2016) (citation and quotation marks omitted); see also Ortiz v. Westchester Med. Ctr. Health Care Corp., No. 15-CV-5432, 2016 WL 6901314, at *9 (S.D.N.Y. Nov. 18, 2016) (holding that "the same legal standards govern the disability provisions of the ADA [and] [Section 504]"). Because the two statutes have the same requirements, courts frequently analyze them together. See K.M. v. Hyde Park Cent. Sch. Dist., 381 F. Supp. 2d 343, 357 (S.D.N.Y. 2005) (collecting cases).

To plead a claim under either statute, Plaintiffs must show that Defendant "acted with bad faith or gross misjudgment" when administering disability services. See Maus v. Wappingers Cent. Sch. Dist., 688 F. Supp. 2d 282, 301 (S.D.N.Y. 2010) (citation and quotation marks omitted). Because the ADA and Section 504 "address discrimination against disabled students, rather than incorrect or erroneous special education treatments, as in the case of [the] IDEA," there must be "something more than a mere violation of the IDEA . . . in order to show a violation of [either statute] in the context of educating children with disabilities." Scaggs v. N.Y. Dep't of Educ., No. 06-CV-799, 2007 WL 1456221, at *15 (E.D.N.Y. May 16, 2007) (citation and quotation marks omitted). A plaintiff is not required to "show defendants acted with animosity or ill will." R.B. ex rel. L.B. v. N.Y.C. Bd. of Educ., 99 F. Supp. 2d 411, 419 (S.D.N.Y. 2000) (citations omitted). "Rather, intentional discrimination may be inferred when a school district acts with gross negligence or reckless indifference in depriving a child of access to a FAPE." Rutherford v. Fla. Union Free Sch. Dist., No. 16-CV-9778, 2019 WL 1437823, at *34 (S.D.N.Y. Mar. 29, 2019) (citation omitted). Therefore, claims of discrimination under Section 504 and the ADA and claims of deprivation of a FAPE, although "complementary," "address different injuries and thus require different proof." Gabel ex rel. L.C. v. Bd. of Educ. of Hyde Park Cent. Sch. Dist., 368 F. Supp. 2d 313, 333 (S.D.N.Y. 2005). Whereas "denial of access to an appropriate educational program on the basis of a disability is a Section 504 [and ADA] issue, . . . dissatisfaction with the content of an IEP would fall within the purview of IDEA." Id. at 333-34 (emphasis in original).

Although Plaintiffs have raised a number of issues that suggest dissatisfaction with the effectiveness of the content of J.C.T.'s IEPs, the record shows that no reasonable jury could conclude that the District acted intentionally or with reckless indifference in failing to provide J.C.T. with a FAPE or otherwise limiting J.C.T.'s access to programs accessible to non-disabled students.⁸

8 Defendant does not dispute that J.C.T. is disabled for purposes of protection under Section 504 or the ADA. (See Def.'s 56.1 ¶ 1.)

Based on the record, the only possible basis for arguing that J.C.T. suffered a particular form of exclusion based on his disability was Plaintiffs' allegation that he was "banned from the school bus, and no attempt was made to ameliorate this." (Am. Compl. ¶ 131.) Upon close examination of the record, however, the Court concludes that this practice—which was not truly a "ban"—did not violate J.C.T.'s constitutional rights. To begin, K.C. herself acknowledges that the recommendation that J.C.T. temporarily not ride the school bus was not a prohibition. (See K.C. Aff. ¶¶ 52-59.) Indeed, the District provided an option for reasonably accommodating J.C.T. on the bus, suggesting that if J.C.T.'s parents were ever unable to transport J.C.T. to school, they should inform the school so that J.C.T. could be accompanied by a teacher's assistant. (See Pls.' Counter 56.1 ¶ 199.) Moreover, Keegan explicitly informed K.C. that resuming J.C.T.'s trips on the school bus was a parental decision, (see 2012 Keegan Bus Email), and K.C., through her own judgment, concluded that she wanted to avoid having J.C.T. ride the bus with a teacher's assistant, because she was concerned it would subject J.C.T. to "name-calling," (Pls.' Counter 56.1 ¶ 200). On some occasions, J.C.T. even did ride the bus after April 16, 2012, which K.C. acknowledged as her attempts "to see if there were any incidents." (Def.'s 2019 K.C. Dep. Tr. Excerpt 117.) K.C. also acknowledged no one attempted to preclude J.C.T. from doing so and noted that there were no further incidents on the school bus. (Id. at 116-17.) Therefore, the record shows that there was simply no "[e]xclusion," as required for a discrimination claim. See B.C., 837 F.3d at 158 ("Exclusion or discrimination may take the form of disparate treatment, disparate impact, or failure to make a reasonable accommodation." (citation omitted)). Even assuming arguendo that Doyle's recommendation rose to the level of a prohibition on J.C.T. riding the school bus alone, the District made it clear that it would provide a teacher's assistant to accompany J.C.T. on days he needed to ride the bus, proposing a reasonable accommodation for J.C.T.'s emotional disabilities. (Pls.' Counter 56.1 ¶ 199.) Plaintiffs cite no case law, and the Court is aware of none, that supports the proposition that mere advice from Doyle or Keegan regarding the appropriateness of J.C.T. riding the school constitutes discrimination under Section 504 or the ADA.

Furthermore, when asked whether there were any programs or opportunities that non-disabled students had that J.C.T. was prevented from engaging in, J.C.T. testified in his deposition that although J.C.T. "got the sense that [J.C.T.] wouldn't be welcomed" to some activities, he could not list any activities from which he was prevented engaging with on the basis of his disability. (See Rushfield Decl. Ex. F ("Def.'s J.C.T. Dep. Tr. Excerpt") 117-18 (Dkt. No. 126-6).) J.C.T. instead responded that his main deprivation was accommodations of his inability to focus in general education classrooms, (see id. at 120-21), which is one of the main issues that Plaintiffs have with the substance of J.C.T.'s IEPs, (see Pls.' Mem. 21-24).

With no other specific, identifiable exclusionary conduct to support their discrimination claims, Plaintiffs must rely on the argument that the District's alleged failure to properly construct or implement J.C.T.'s IEPs rose to the level of discriminatory behavior under Section 504 or the ADA. (See Pls.' Mem. 21.) Plaintiffs argue that (1) J.C.T.'s educational needs were not met "as adequately as the needs of non-handicapped persons are met"; (2) J.C.T.'s time outside of the classroom was indicative of J.C.T. not receiving "regular . . . instruction from certified teachers during the" 2011-12 school year, which "unilaterally shortened" his school day; and (3) both of these acts were committed with "deliberate indifference." (Pls.' Mem. 21-24.) These claims are nothing more than "restatements of [Plaintiffs'] IDEA claims," Y.A. v. N.Y.C. Dep't of Educ., No. 15-CV-5790, 2016 WL 5811843, at *20 (S.D.N.Y. Sept. 21, 2016) (citation, alteration, and quotation marks omitted), which also argue that J.C.T.'s IEPs were insufficient and improperly implemented because J.C.T spent significant amounts of time outside of the classroom and isolated from his peers, (see Am. Compl. ¶¶ 50-62, 85-94, 102). Indeed, the Court has acknowledged the similarities underlying both categories of claims in previous Opinions, noting that the questions of timeliness pertaining to Plaintiffs' IDEA claims "would apply with equal force to the Section 504 and ADA claims, which arise out of the same factual predicate as the IDEA claims," (2017 Op. 17 (emphasis added)), and that the "factual allegations underlying the First, Second, and Third Causes of Action, and the Fourth and Fifth Causes of Action, are substantially the same," (2018 Op. 40). The fuller record before the Court now only confirms those initial evaluations, since it reveals no specific other form of exclusion or discrimination.

Nevertheless, the deprivation of a FAPE may in some cases constitute discrimination under Section 504 or the ADA, but here, that argument fails because Plaintiffs' own factual statements and admissions belie the existence of the requisite elements of "gross negligence or reckless indifference." Rutherford, 2019 WL 1437823, at *34 (citation omitted). For example, Plaintiffs acknowledge that "teaching assistants and non-teaching staff chased [J.C.T.] around the school cajoling him to do some schoolwork," which is a far cry from behavior indicative of gross negligence or indifference to J.C.T.'s struggles at school. (Pls.' Mem. 22 (citing to Pls.' 56.1 ¶¶ 170, 183, 185).) Nor is the existence of the "J.C.T. Schoolwork Avoidance Plan" indicative of discrimination against J.C.T's based on his disability.⁹ In fact, the Plan was a concerted effort between multiple members of Bell staff to attempt to refocus J.C.T. onto his schoolwork whenever he became frustrated or wandered away from his assigned classroom. (See supra note 8; Sclafani Aff. ¶¶ 7-9; Dr. Giannettino Aff. ¶ 4; Pollock Aff. ¶¶ 3-7; Kaufman Aff. ¶¶ 3, 5-8, 10; Stein-Dince Aff. ¶¶ 3-9.) Rather than demonstrate any level of negligence or recklessness, the record shows that Bell teachers and administration tried repeatedly to work together to help J.C.T. refocus when he left the classroom and to control or diminish the number and extent of J.C.T.'s emotional and physical outbursts. Plaintiffs may have experienced frustration with the content, implementation, and effectiveness of the IEPs and with J.C.T.'s continued behavioral issues, but that alone does not establish that the District acted with gross negligence or reckless indifference. See Avaras v. Clarkstown Cent. Sch. Dist., No. 15-CV-2042, 2017 WL 3037402, at *27-28 (S.D.N.Y. July 17, 2017) (finding no deliberate or reckless indifference where the plaintiff parents alleged that the student was "warehoused in a self-contained classroom" and noting that "simply contesting whether the [school-provided] benefits [or accommodations] were appropriate" does not plausibly state a claim for actions taken "in bad faith or as a result of gross misjudgment or negligence" (citation and quotation marks omitted)); Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp. 2d 529, 565 (S.D.N.Y. 2010) (finding that "there is no basis for a reasonable fact finder to conclude that the [d]istrict acted with deliberate or reckless indifference or with gross negligence" despite findings that the district "ultimately failed to provide a FAPE for [the student] for [three] school years" (collecting cases)); see also Streck v. Bd. of Educ. of E. Greenbush Sch. Dist., 280 F. App'x 66, 68 (2d Cir. 2008) (affirming dismissal of ADA and Section 504 claims where "an [IEP] was created and implemented," indicating that the student was "afforded access to an existing program," but that the plaintiff parents were only "challeng[ing] the content and sufficiency" of that program (citation and quotation marks omitted)); cf. Gabel, 368 F. Supp. 2d at 336 (finding that the school district acted with reckless indifference when "it actually avoided dealing with [the student's] parents because it had no proper placement for" the student (emphasis and alteration omitted)).

9 The "J.C.T. Schoolwork Avoidance Plan" refers to a general strategy that was purportedly used by Bell employees during the 2011-12 school year. (See Def.'s Counter 56.1 ¶ 244.) Sclafani describes it as "a plan to address J.C.T.'s practice of schoolwork avoidance whereby, consistent with [the] IEP, J.C.T. would be allowed a short break to either attend or return to any academic class he was avoiding being in. If he could not be cajoled to attend or return to that class after a few minutes break, . . . J.C.T. would be pressed to do the academic schoolwork that he was required to perform in the class he was avoiding, or, if that could not be done, other core academic subject schoolwork that he had failed to do, with the assistance of his 1:1 teaching assistant and/or such assistance as [Keegan] or I could offer." (Sclafani Aff. ¶ 7.) According to Sclafani, J.C.T. was usually pressed to work on the schoolwork "wherever it could be done most effectively," which included spaces like Keegan's classroom, Sclafani's room, or "if absolutely necessary," the health office. (Id.)
This plan was corroborated by information provided by Annemarie Giannettino ("Dr. Giannettino"), a school psychologist employed by Bell and the District, (see Dr. Giannettino Aff. in Supp. of Mot. ("Dr. Giannettino Aff.") ¶ 4 (Dkt. No. 128)), and Patricia Pollock ("Pollock"), a nurse at Bell, (see Pollock Aff. in Supp. of Mot. ("Pollock Aff.") ¶¶ 3-7 (Dkt. No. 130)). Pollock noted that when J.C.T. came to her office complaining that "he didn't feel well," she would notify J.C.T.'s teacher for that class period that J.C.T. was in the health office with her and then contact Sclafani for "his advice as to how to handle the situation." (Id. ¶¶ 2-3.) Sclafani would occasionally instruct Pollock to "let J.C.T. lay down for a short period . . . to see if he would improve and be able to return to his class." (Id. ¶ 4.) However, if J.C.T. did not improve, Pollock would recommend to Sclafani that she call K.C., to which Sclafani "routinely agree[d]." (Id.) On those occasions, K.C. would come pick J.C.T. up from school. (See id.) On other occasions, Sclafani or Keegan would "engage in efforts to encourage J.C.T. to promptly return to [] class. If that class was ending shortly, [J.C.T.] would be encouraged to proceed to [the] next class. If [J.C.T.] refused to return to a class, [J.C.T.] was encouraged to do the schoolwork that he was missing in the core subject classes." (Id. ¶ 5.) According to Pollock, sometimes, "[d]espite all [their] efforts," Pollock, Keegan, and/or Sclafani could not get J.C.T. to cooperate and, in those situations, "J.C.T. would be allowed to rest in the [h]ealth [o]ffice until such time as [they] might be able to get [J.C.T.] to return to class or to do any school work." (Id.) Usually, Sclafani or J.C.T.'s teaching assistant would accompany J.C.T. to the health office, but if J.C.T. happened to arrive unaccompanied, Pollock claims she would contact Sclafani or Keegan to let them know that J.C.T. was in the health office. (See id. ¶ 6.)
One of J.C.T.'s teaching assistants, Kaufman, claims she was also aware of this overall strategy to handle J.C.T.'s attention issues, and avers that she was "usually successful in getting J.C.T to do some of the schoolwork which he had left a class to avoid" when she could not get J.C.T. to return to class. (Kaufman Aff. in Supp. of Mot. ("Kaufman Aff.") ¶ 5 (Dkt. No. 131).) Another teaching assistant, Stein-Dince, claimed that she usually was able to accompany J.C.T into the hallway and do work with him if she could not get J.C.T. to return to the classroom within a few minutes. (See Stein-Dince Aff. in Supp. of Mot. ("Stein-Dince Aff.") ¶ 6 (Dkt. No. 132).) Stein-Dince claimed that "[s]tudents doing their schoolwork in the hallways at Bell was, and remains, common and was, and still is, permitted." (Id.)

Nor does any of the evidence show that J.C.T. "was denied a federal benefit because of his disability." Pinn ex rel. Steven P. v. Harrison Cent. Sch. Dist., 473 F. Supp. 2d 477, 484 (S.D.N.Y. 2007) (emphasis in original). In fact, the record shows that the District and its employees worked tirelessly to accommodate J.C.T.'s disabilities, albeit with some mixed results. Accordingly, the Court dismisses Plaintiffs' Section 504 and ADA claims. See S.B. v. N.Y.C. Dep't of Educ., 117 F. Supp. 3d 355, 380-81 (S.D.N.Y. 2015) (holding that the plaintiffs' allegations were that "the defendants failed to provide [the student] with a FAPE" and denying summary judgment for the plaintiffs on, inter alia, the Section 504 and ADA claims while granting summary judgment for the plaintiffs on their IDEA claim); M.C. v. Arlington Cent. Sch. Dist., No. 11-CV-1835, 2012 WL 3020087, at *10-11 (S.D.N.Y. July 24, 2012) (dismissing Section 504 claim where the plaintiffs alleged that the student, who had Asperger's Syndrome, was repeatedly questioned about the student's alleged suicidal thoughts and "threatened . . . with arrest if he did not go to the hospital," because the plaintiffs believed that the defendants were "incorrect in their judgment" (quotation marks omitted)).

2. IDEA Claims

In their Amended Complaint, Plaintiffs primarily allege that the SRO erred in finding that the District's 2011-12 and 2012-13 IEPs provided J.C.T with a FAPE, thereby overturning the IHO's award of compensatory education and tuition reimbursement. (See Am. Compl. ¶¶ 126-27, 160, 187-88.) Defendant argues that the Court should defer to the SRO's educational expertise, as Plaintiffs' complaints primarily deal with the substance of the IEP. (See Def.'s Mem. 12-19.) Plaintiffs counter that the Court should not defer to the SRO's findings because they are not well-founded and that, instead, the Court should reinstate the IHO's award. (See Pls.' Mem. 4-20.) The Court addresses these and other related arguments below.

a. Additional Evidence

At the outset, the Parties dispute whether and how the Court should use additional evidence presented to it through the instant Motion's supporting papers. The IDEA provides that, typically, a district court shall: "receive the records of the administrative proceedings; . . . hear additional evidence at the request of a party; and . . . basing its decision on the preponderance of the evidence, shall grant relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(c)(i)-(iii). Under this provision, "[t]he taking of additional evidence is a matter . . . left to the discretion of the trial court." Lillbask ex rel. Mauclaire v. Sergi, 193 F. Supp. 2d 503, 506 (D. Conn. 2002) (citation omitted). Courts generally accept evidence that was not withheld in bad faith and is relevant but are cautioned not to permit additional evidence to the extent it changes the administrative review into a de novo review. See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 380 (2d Cir. 2003) ("Federal courts reviewing administrative determinations under IDEA must . . . tak[e] into account not only the record from the administrative proceedings, but also any further evidence presented before the District Court by the parties." (citation omitted)); Town of Burlington v. Dep't of Educ. of Mass., 736 F.2d 773, 790-91 (1st Cir. 1984) (declining to require that courts "disallow testimony from all who did, or could have, testified before the administrative hearing," because "a rigid rule to this effect would unduly limit a court's discretion," and instead leaving "[t]he determination of what is 'additional' evidence . . . to the discretion of the trial court"), aff'd, 471 U.S. 359 (1985); Plainville Bd. of Ed. v. R.N., No. 09-CV-241, 2009 WL 2059914, at *1 (D. Conn. July 10, 2009) ("In determining whether to admit additional evidence beyond the administrative record, a court 'must be careful not to allow such evidence to change the character of the hearing from one of review to a trial de novo.'" (citation and italics omitted)); id. ("The party moving to submit additional evidence must establish that it is relevant and necessary." (collecting cases)); Eschenasy v. N.Y.C. Dep't of Educ., 604 F. Supp. 2d 639, 649 (S.D.N.Y. 2009) (noting that "the Third Circuit has stated that the district court should consider additional evidence that is 'relevant, non-cumulative, and useful'" (quoting Susan N. v. Wilson Sch. Dist., 70 F.3d 751, 760 (3d Cir. 1995))).

Defendant submitted several affidavits from various Bell staff members, arguing that the "affidavits and exhibits, as well as the portions of the transcripts of the deposition testimony of Dr. Marta Flaum . . . , J.C.T. . . .[, and] K.C. and M.C. . . . are submitted in support of the District's motion for summary judgment as concerns [Plaintiffs'] claims under Section 504 and the ADA." (Rushfield Aff'n ¶ 3.) Defendant also submitted affidavits of a number of Bell staff (specifically, Vigilante, Doyle, Fitzgerald, Chinn, Wolff, and Kuczma) to help the Court—if necessary—supplement the analytical gap left by the SRO, who considered all IEP implementation claims arising from events before May 27, 2012 time-barred. (See id. ¶¶ 4-5.) Plaintiffs, in their Opposition, concur with Defendant's request but also request that the Court use "all additional evidence provided by both [P]arties in its review of the SRO's decision." (Pls.' Mem. 3.) In connection with this request, Plaintiffs submitted affidavits and deposition testimony of K.C. and J.C.T. and suggested that the Court use deposition testimony from Fitzgerald, which was submitted by Defendant in connection with the Rule 56 Motion only. (See Asher Decl. ¶¶ 7-8; see also Rushfield Aff'n ¶¶ 3-5.)

While it was at the Court's direction that the Parties combined Defendant's Rule 56 summary judgment argument with the other IDEA "summary judgment" arguments, (see Pls.' Mem. 2), the Court declines to use that instruction—an attempt to condense and simplify the logistics of briefing and filing—as an opportunity to allow evidence that Defendant specifically submitted only for the traditional summary judgment motion into the entirety of the IDEA analysis. Moreover, Plaintiffs have not made any more than a conclusory assertion that this additional information is pertinent or useful to the disposition of the IDEA claims. (See id. at 3.) Accordingly, the Court declines to use the exhibits submitted by Defendant only for the Rule 56 arguments in its consideration of the IDEA claims.

Some of Defendant's submissions were also designated by Defendant to supplement the IDEA analysis of the significance of J.C.T.'s class period absences, information that the SRO did not consider for the period prior to May 27, 2012 due to its statute of limitation determination. (See Rushfield Aff'n ¶¶ 4-5.) The Court concludes that this additional evidence is "non-cumulative," "useful," and does not "change the character of the hearing from one of review to a trial de novo." G.B., 751 F. Supp. 2d at 554 n.1 (citations and quotation marks omitted). Although the Court agrees with the SRO that the statute of limitations properly cuts off Plaintiff Parents' FAPE claims that arose from incidents prior to May 27, 2012, see Section II.B.2.b, infra, the Court finds that this information is useful to its review of the SRO's finding as to the appropriateness of the 2012-13 IEP. This implicates only the affidavits of Vigilante, Doyle, Fitzgerald, Chinn, Wolff, and Kuczma, which provide additional explanation about the school's absence recording system and how to interpret J.C.T.'s absence data. (See Rushfield Aff'n ¶ 5; see also, e.g., Vigilante Aff. ¶ 1 (noting that Vigilante was the clerk at Bell during the 2011-12 school year); Doyle Aff. ¶¶ 3-4, 10-12 (affirming Doyle's familiarity with Bell's policy as to students with a pattern of tardiness or absences and noting that J.C.T.'s class attendance record did not fall within the scope of that policy); Fitzgerald Aff. ¶¶ 17-18 (noting that Fitzgerald did not consider J.C.T.'s absences to be a significant problem because the records show a limited number of absences in core classes); Wolff Aff. ¶¶ 6-8 (noting under which circumstances Wolff would mark J.C.T. absent and explaining that, even during absences, J.C.T. was frequently accompanied by Keegan or a teaching assistant).)

Lastly, Plaintiffs also submit affidavits and deposition testimony of K.C. and J.C.T. in support of their IDEA arguments without explaining why this additional testimony is necessary, non-cumulative, or useful to the Court in assisting its review. (See Asher Decl. ¶¶ 7-8.) Unlike other circumstances where courts have accepted new evidence outside of the administrative record before the SRO, the evidence submitted here is voluminous and entails the testimony of two central people to this Action since its inception as a due process complaint. See G.B., 751 F. Supp. 2d at 554 n.1 (noting that the plaintiffs' additional submissions were "brief" and "do not change the character of this proceeding"); Jordan S v. Hewlett Woodmere Union Free Sch. Dist., No. 08-CV-1446, 2009 WL 910804, at *3 (E.D.N.Y. Mar. 31, 2009) (declining to permit evidence that was "duplicative," but allowing evidence of progressive report cards and progress reports). Plaintiffs have not shown that the "administrative record[, which is well over 1000 pages long,] is [in]sufficient evidence to evaluate the [SRO's] decision." Lillbask, 193 F. Supp. 2d at 506-07 (citation omitted) (noting that "the IDEA seeks to promote speedy resolution of the litigation"). Moreover, "[t]he party moving to submit additional evidence must establish that it is relevant and necessary," Plainville Bd. of Educ., 2009 WL 2059914, at *1 (collecting cases), which Plaintiffs—through one line in their Memorandum standing only for the proposition that the evidence was not withheld in bad faith or likely to create a trial de novo, (see Pls.' Mem. 3)—simply do not do. Accordingly, the Court will not consider the additional deposition testimony of K.C. or J.C.T. in its evaluation of the SRO's decision.

The Court notes, however, that even if they were under consideration, the additional testimony would not change the ultimate outcome. K.C. already testified extensively in the IHO Hearing, and her deposition testimony focuses primarily on issues that the SRO was already aware of in the administrative record, such has J.C.T having "no friends, . . . no social life[,] . . . low self-esteem[,] . . . [and] grades [that were declining] significantly" during his years at Bell. (Asher Decl. Ex. F ("Pls.' 2019 K.C. Dep. Tr. Excerpt 2") 146 (Dkt. No. 144-10); see generally IHO Hr'g Tr. 1037-1388; Asher Decl. Ex. E ("Pls.' 2019 K.C. Dep. Tr. Excerpt 1"); Ex. F ("Pls.' 2019 K.C. Dep. Tr. Excerpt 3") (Dkt. Nos. 144-9-10).) J.C.T.'s February 8, 2019 deposition also does not add any materially new information to the record before the SRO, as the deposition mostly rehashes the details of J.C.T.'s problems at home and at school during the 2011-13 period, including his inability to focus, frequent departures from the classroom, issues with overeating, and emotional outbursts, all of which the SRO properly considered in the Decision. (See generally Asher Decl. Ex. D ("J.C.T. 2019 Dep. Tr.") (Dkt. No. 144-4-7).)

b. Statue of Limitations and Withholding of Information

In its previous Opinion on the statute of limitations issue, the Court reserved decision as to whether Plaintiffs' First, Second, and Third Causes of Action were time-barred through May 26, 2012.¹⁰ (See 2018 Op. 31, 35.) In that Opinion, the Court applied the conventional Rule 56 summary judgment standard and concluded that "[a] reasonable fact finder could find Plaintiffs' version of events . . . to be more credible" than Defendant's. (Id. at 35.) The Court applied that standard because at the time, Plaintiffs' Section 504 and ADA claims—which were not subject to IDEA-style adjudication, (see SRO Decision 6)—would also be implicated in the statute of limitations decision, as discussed in this Court's previous Opinion on Defendant's Motion for Judgment on the Pleadings, (see 2017 Op. 17). Now, the Section 504 and ADA claims have been dismissed, and all that remains is a resolution of the IDEA-related claims, which is typically resolved by the Court based on the written record before it. However, as noted previously, even under an IDEA analysis, "deference is not owed to the SRO's determination regarding the accrual of Plaintiffs' claims" because that is not a matter that required the SRO's "educational expertise." (Id. at 18-19 (emphasis added).)

10 As discussed in that Opinion, Defendant refers to May 25, 2012 as the launch date for Plaintiffs' timely claims, (see Def.'s Reply 8), but the SRO Decision refers to May 27, 2012 as the cutoff date because Plaintiffs filed their due process complaint on May 27, 2014, (see SRO Decision 13). Accordingly, the SRO concluded that all "claims that accrued on or before May 26, 2012 are time-barred." (Id. (citations omitted)). The Court therefore considers May 27, 2012 as the beginning of the timely portions of Plaintiffs' complaints.

Even without deferring to the SRO's holding, after a review of the administrative record, the Court does not see a need to disturb the SRO's judgment that the parents' claims that accrued on or before May 26, 2012 were time-barred. The SRO correctly noted many examples of evidence suggesting that parents knew or had reason to know of J.C.T.'s emotional disturbances and lost class time before 2014, when Plaintiffs submitted their due process complaint and received additional documentation about J.C.T. from the District. For example, K.C. had conversations with Sclafani, Keegan, and Pollock throughout the 2011-12 school year, where each Bell staff member informed K.C. that J.C.T. was "going down to [Pollock's] office when he needed a break from class." (Pls.' Counter 56.1 ¶ 109.) At the February 15, 2012 CSE Meeting, Plaintiff Parents brought up their concerns that J.C.T. was "missing a lot of class and had not been learning based upon lower report card grades," suggesting that even if they were not aware of the exact amount of time J.C.T. spent outside of the classroom, they did have some understanding that it was affecting his grades and learning potential. (Feb. 15, 2012 CSE Meeting Notes and IEP 2.) The meeting notes also indicate that the CSE discussed that J.C.T. was experiencing "difficulty with his peers" and often "exhibit[ed] immature social behaviors," suggesting that Plaintiff Parents were sufficiently on notice as to the way J.C.T.'s emotional disability manifested at school. (Id. at 7.) Furthermore, as discussed in the previous 2018 Opinion, many of Plaintiffs' assertions that they did not receive specific forms of documentation regarding J.C.T.'s performance prior to 2014 are not supported by admissible, documented evidence, (see 2018 Op. 14-18), and are belied by documentary evidence that some information was available to Plaintiff Parents well before May 26, 2012, such as the Functional Behavioral Assessment ("FBA"), (Feb. 15, 2012 CSE Meeting Notes and IEP 3), and the existence of Bell's parent portal, which provided class-by-class attendance notes with attendance incidents noted identified with a yellow bell, (see IHO Hr'g Tr. 1322-25, 1514, 1516-17, 1523-35, 1538-41 (Dkt. No. 56-25).)¹¹ Although the record is unable to establish that Plaintiff Parents saw the attendance details, they did log on to the parent portal a dozen times during the 2011-12 school year, where the attendance information was discoverable. (See id. at 1525-38; see also 2018 Op. 12.) Accordingly, the Court agrees with the SRO that Plaintiff Parents knew or had reason to know of the issues affecting J.C.T.'s education as to the implementation of the 2011-12 IEP before May 27, 2012.

11 The entirety of the IHO Hearing Transcript was in front of the SRO as part of the administrative record. Portions of the Transcript were submitted to the Court as exhibits accompanying prior motions in the case, and the Court refers to those exhibits for ease of access. The full administrative record was sent directly to the Court.

Nor does the record show that the District withheld material documentation prior to the CSE meetings in violation of IDEA's procedural requirements. (See Pls.' Mem. 16-17.) To determine "whether the District fulfilled IDEA's procedural obligations, [the Court] focus[es] on whether [Plaintiffs] had an adequate opportunity to participate in the development of [J.C.T.'s] IEP." Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). To do that, the IDEA requires, inter alia, "[a]n opportunity for the parents of a child with a disability to examine all records relating to such child and to participate in meetings with respect to the identification, evaluation, and educational placement of the child, and the provision of a [FAPE] to such child, and to obtain an independent evaluation of the child." 20 U.S.C. § 1415(b)(1). However, even without obtaining every piece of documentation that Plaintiffs later received when they filed their 2014 due process complaint, it is clear that Plaintiff Parents and their private psychologist and tutor were given an adequate opportunity to participate in the 2012 CSE Meetings and appropriately voice their concerns. For example, following the February 15, 2012 CSE Meeting, J.C.T.'s classification changed from "Other Health Impaired" to "Emotional Disturbance," and a 40-minute Skills Seminar was added, demonstrating that Plaintiff Parents' concerns about his behavior indeed had an impact on the District's strategy for J.C.T.'s education. (Pls.' 56.1 ¶ 318.) Although the CSE ultimately refused, Plaintiff Parents, J.C.T.'s private psychologist, psychiatrist, and tutor all had sufficient knowledge and opportunity to request a "smaller, more therapeutic placement during the program review meeting in February 2012." (Id. ¶ 339.) Later in the year, Plaintiff Parents were provided with the February 12, 2015 Notes and IEP at the commencement of the May 1, 2012 CSE Meeting. (Pls.' Counter 56.1 ¶ 95.) The packet of materials provided before the May 1, 2012 CSE Meeting also contained Confidential Student Report documents, which included statements from teachers that J.C.T. "rarely" "attend[ed] class consistently, arrive[d] on time, and stay[ed] the entire time." (Id. ¶ 101.) Plaintiff Parents were thus equipped with enough information to meaningfully participate in the development of J.C.T.'s IEPs, even if they were not able to access every piece of documentation pertaining to J.C.T at the time. See K.F. v. N.Y.C. Dep't of Educ., No. 15-CV-1126, 2016 WL 3981370, at *8 (S.D.N.Y. Mar. 31, 2016) (holding that the IDEA does not "require the [CSE] to ensure that [the parent] spoke on every point"); P.K. ex rel. P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 383 (S.D.N.Y. 2008) ("The fact that the [d]istrict staff ultimately disagreed with the opinions of [the] plaintiffs and their outside professionals does not mean that [the] plaintiffs were denied the opportunity to participate in the development of the IEP's . . . .").

Even to the extent Plaintiffs could show that they were improperly denied access to some of J.C.T.'s school records or emails, "such errors will not negate the adequacy of an IEP where the child's education has not been affected." Y.A., 2016 WL 5811843, at *9 (alteration and quotation marks omitted) (quoting N.C. v. Bedford Cent. Sch. Dist., 300 F. App'x 11, 14 (2d Cir. 2008)). "Not every procedural error in the development of an IEP . . . renders it inadequate under the IDEA." J.G. v. Briarcliff Manor Union Free Sch. Dist., 682 F. Supp. 2d 387, 392, 396-97 (S.D.N.Y. 2010) (citation omitted) (holding that IDEA procedural requirements were not violated even where the plaintiff parents were not present for one of the meetings). As discussed below, because J.C.T. was ultimately provided with a FAPE, even the existence of some procedural errors would not negate the SRO's finding as to the ultimate adequacy of the IEP.

c. Denial of a FAPE

The final question before the Court is whether J.C.T, either through failure to implement or through the design of the IEP itself, was denied a FAPE. On this issue, as discussed above, the Court must defer to a "thorough and careful" SRO decision, S.C., 175 F. Supp. 3d at 252 (citation and quotation marks omitted), because when the substance of an IEP is challenged, the SRO's "specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy," M.H., 685 F.3d at 240 (citation and quotation marks omitted), is greater than the Court's. Where the SRO's decision is "reasoned and supported by the record," this Court should "defer to [its] findings." T.P., 554 F.3d at 254 (citation and quotation marks omitted).

Here, the SRO's Decision was thorough and careful, addressed Plaintiff Parents' arguments, and adequately evaluated somewhat conflicting evidence. The Court is sympathetic to Plaintiff Parents' frustrations in their pursuit of providing J.C.T. with the best possible educational environment, but Plaintiffs' arguments that the SRO Decision does not merit deference are unavailing. The Court addresses them as needed below.

Plaintiffs argue that the SRO did not address certain "material aspects" of Plaintiffs' claims, including the appropriateness of the 2011-12 IEP "for any period prior to the last month of J.C.T.'s seventh grade year," whether Westfield Day School was an appropriate unilateral placement, and whether equitable considerations favored tuition reimbursement. (Pls.' Mem. 7.) Because the SRO appropriately determined that the statute of limitations barred any claims arising from events that occurred prior to May 27, 2012, the SRO did not need to consider the details of whether the 2011-12 IEP was appropriately implemented for most of that school year. Moreover, even to the extent information from the time-barred period was relevant in evaluating the claims that were not time-barred, the SRO did so, such as the efficacy of the February 2012 FBA and behavioral intervention plan ("BIP") for the one month of the 2011-12 school year that was not time-barred. (See SRO Decision 16-17.) Moreover, "a party challenging the implementation of an IEP must show more than a de minimis failure to implement all elements of that IEP, and, instead, must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP." D.D-S v. Southold Union Free Sch. Dist., No. 09-CV-5026, 2011 WL 3919040, at *13 (E.D.N.Y Sept. 2, 2011) (citation, alteration, and quotation marks omitted), aff'd 506 F. App'x 80 (2d Cir. 2012), cert. denied, 135 S. Ct. 443 (2014). Here, the SRO correctly noted several ways in which the District attempted to accommodate J.C.T.'s needs throughout the school year, such as altering J.C.T.'s workload as needed, "increasing the amount of space between [J.C.T.] and his teaching assistant, allowing [J.C.T.] plenty of time to complete work in school[,] and constantly evaluating [J.C.T.'s] need for additional support." (SRO Decision 16 (citations and quotation marks omitted).) Even if Plaintiff Parents or their privately hired experts and tutor disagreed with the method of implementation, that does not establish that the "authorities failed to implement substantial or significant provisions of the IEP" so as to deprive J.C.T. of a FAPE. D.D-S, 2011 WL 3919040, at *13 (citation and quotation marks omitted); see also V.M. v. N. Colonie Cent. Sch. Dist., 954 F. Supp. 2d 102, 118-19 (N.D.N.Y. 2013) (holding that although the IHO "found that certain aspect[s] of the IEP[s] . . . were not properly implemented," those failures did not impact a "significant or substantial aspect" of the IEPs and that the student was still provided with a FAPE).

Furthermore, the SRO did not need to reach Plaintiffs' arguments about appropriate unilateral placement or the equities of tuition reimbursement because the SRO had already reversed the IHO's finding that J.C.T. was not provided by a FAPE. That is not indicative of a flaw in the SRO's decision, but rather, the logical outcome of a determination that Plaintiffs' case failed at the first step of the analysis. See R.R. ex rel. M.R. v. Scarsdale Union Free Sch. Dist., 615 F. Supp. 2d 283, 295 (S.D.N.Y. 2009) (noting that it is not necessary to "proceed to assess the appropriateness of [the student's] placement . . . or weigh equitable considerations" because the district "complied with its IDEA obligations for both school years at issue" (citation omitted)), aff'd 336 Fed. App'x 239 (2d Cir. 2010); see also T.P., 554 F.3d at 254 (same).

Plaintiffs also argue, without including record citations, that the SRO "did not have access to additional, highly probative evidence which further establishes that the student was unable to be educated in the general education setting" without referring to the evidence. (Pls.' Mem. 7.) To the extent Plaintiffs are referring to the new depositions they submitted with their Opposition, the Court declines to rely upon them but also notes that nothing in them would materially affect the outcome, as discussed above. To the extent Plaintiffs are referring to other new evidence, the Court will not use this under-developed argument as an "invitation . . . to scour the record," particularly where Plaintiffs are counseled. Sioson v. Knights of Columbus, 303 F.3d 458, 459-60 (2d Cir. 2002) (citation and quotation marks omitted) ("To make a legal argument is to advance one's contentions by connecting law to facts, yet there is not one fact, or supposed fact, let alone a fact properly cited to the record" to support Plaintiffs' argument. (citation omitted)). In any event, "the preponderance of the evidence indicates that the [SRO] had sufficient and accurate information" to understand J.C.T.'s needs, the events that transpired at each CSE meeting, and the actual content of the IEPs. C.R. v. N.Y.C. Dep't of Educ., 211 F. Supp. 3d 583, 609 (S.D.N.Y. 2016).

Plaintiffs also argue that the SRO made a factual error in asserting that it was Plaintiff Parents' behavioral analyst who critiqued the District's behavior plans, when it was actually the District's own behavioral expert who did so. (Pls.' Mem. 8.) In one sentence in the factual summary, the SRO mistakenly refers to the District's behavioral expert as the parents', but this error was of no consequence because the SRO also reviewed the content of the FBA and BIP and ultimately concluded that they were "implemented, reviewed, and resulted in some progress in addressing [J.C.T.'s] behavior." (SRO Decision 18.) The SRO's Decision did not give any less weight to the critiques of them simply because the SRO believed it was Plaintiff Parents' expert that provided the critiques when it was actually the District's. (See id.) Regardless of expert testimony, the SRO conducted an independent review of the FBA and BIP and noted that they identified "three target behaviors" and "strategies for preventing target behaviors, . . . alternative replacement behaviors to be taught to [J.C.T.], . . . and . . . rewards for positive behavior." (Id. at 17 (citation omitted).) The SRO also gave weight to Keegan's testimony that "some of the strategies were successful." (Id. (citation omitted)) Regardless, assuming arguendo that the FBA and/or BIP were inadequate, "the failure to create an adequate FBA [does] not amount to the denial of a FAPE." R.E., 694 F.3d at 193; see also A.C. ex rel. M.C. v. Bd. Of Educ. of The Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009) (holding that the school district's failure to conduct an FBA at all "does not compel the conclusion that the [] IEP was legally inadequate," especially where, as here, the IEP "provided for strategies to address [the student's] behavior"). Therefore, neither the SRO's factual error nor the SRO's conclusion about the adequacy of the behavioral plans merits reversal of the SRO's Decision.

Finally, the SRO's Decision appropriately considered and evaluated a number of other critiques as to the substantive adequacy of J.C.T's IEPs, such as Plaintiffs' arguments that J.C.T. exhibited "overwhelmingly dysfunctional behaviors" and that J.C.T. was entitled to a 12-month school year program, also known as an "ESY" program. (See Pls.' Mem. 8, 17.) As to the 12-month program, the SRO noted that, although J.C.T. experienced "social/emotional difficulties outside of school during summer 2011," J.C.T.'s interim and quarterly report cards, which showed passing grades and some "grades in the A range . . . [and] B range," did not demonstrate that J.C.T. "experienced substantial regression following summer 2011, when he did not receive special education services." (SRO Decision 19.) "The SRO's denial of [Plaintiffs'] requested ESY services was also proper. ESY services are required only to the extent necessary 'to prevent substantial regression,' defined as 'the student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year.' . . . The well-reasoned SRO decision is entitled to deference." M.M. v. N.Y.C. Dep't of Educ., No. 15-CV-5846, 2017 WL 1194685, at *9 (S.D.N.Y. Mar. 30, 2017) (citations omitted) (quoting T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 152 (2d Cir. 2014) and 8 N.Y.C.R.R. § 200.1(aaa)).

The Court also disagrees that the SRO's "thorough and well-reasoned" Decision, id. at *6 (citation omitted), gave "short shrift" to J.C.T.'s "dysfunctional behaviors" at school, (Pls.' Mem. 8). Rather, the SRO noted that the CSE discussed how J.C.T.'s behavior was improving at school, explaining that J.C.T. was "conversing with peers more frequently, advocating for himself more often . . ., and was more open to suggestions." (SRO Decision 22.) Nevertheless, the SRO also acknowledged that J.C.T. "still needed reminders and refocusing to manage his frustration." (Id.) The SRO also considered J.C.T.'s updated testing scores, along with recommendations from J.C.T.'s private psychologist that J.C.T. "needed a more therapeutic placement." (Id. at 22-23.) Although Plaintiff Parents expressed that J.C.T. was "not invited to play dates or parties," J.C.T.'s guidance counselor "reported that in school peers reached out to [J.C.T.] and attempted to include him." (Id. at 23.) The SRO also considered information that was discussed at the August 2012 IEP, noting that J.C.T.s "social interactions could be immature or inappropriate," and that, at times, J.C.T. was "overwhelmed by frustration and anxiety, which could cause him to shut down and withdraw form classroom activities." (Id. at 24.) As a result of these developments, the August 2012 CSE added the services of a behavioral consultant and recommended one weekly small group (5:1) session and one weekly individual counseling session. (Id. at 27.) The SRO concluded that the August 2012 CSE recommendations "for a general education placement with direct and indirect consultant teacher services for all academic classes, 12:1 special class-skills instruction, both individual and group counseling, a full time 1:1 teaching assistant, and various program modifications/accommodations was reasonably calculated to enable [J.C.T.] to receive educational benefits in the least restrictive environment." (Id. at 30-31.) The SRO wrote, "While I empathize with the parents over the student's out-of-school behavior, his interfering behavior in school was not such that the student's teachers [were] unable to manage it in the context of providing his instructional and support services." (Id. at 30-31.) "This determination is at heart a matter of education methodology, an area which the SRO has expertise the Court lacks." M.M., 2017 WL 1194685, at *6 (citation omitted); see also C.M. v. N.Y.C. Dep't of Educ., No. 15-CV-6275, 2017 WL 607579, at *20 (S.D.N.Y. Feb. 14, 2017) (deferring to SRO's determination that the IEP in question was adequate where the SRO acknowledged that IEP did not address all of the student's "specific" needs but, instead, appropriately "allowed for flexibility" where appropriate for the student's "social/emotional levels of performance"); C.R., 211 F. Supp. 3d at 613 (deferring to the SRO's decision regarding appropriate class size and related additional services) (collecting cases). To the extent that J.C.T's frequent departures were a significant problem, the SRO pointed out that J.C.T.'s "February 2012 BIP shows that leaving the classroom was a target behavior that the [D]istrict was addressing," concluding that the strategies in those plans were sufficient to address the problem. (See SRO Decision 16.)¹² The SRO's conclusion also aligns with the IDEA's "strong preference for educating disabled children in the least restrictive environment." C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 (2d Cir. 2014) (citation and quotation marks omitted). In sum, none of Plaintiffs' arguments persuades the Court not to defer to the SRO's reasoned judgment.

12 Indeed, the newly submitted Affidavits from Bell teachers and staff suggest that the class absence issue was not as severe as the aggregate numbers might make it seem at first glance. For example, Vigilante, the clerk at Bell for the relevant time period, noted that, based on issues with the absence recording system, "[i]t was not uncommon for teachers taking attendance to merely record the student as absent or tardy even if, for example, the teacher knew that the student was with the Bell guidance counselor or with the school nurse . . ., excusing the absence or delay in attending the class." (Vigilante Aff. ¶ 3.) Vigilante goes on to point out several recording errors that were apparent from the face of J.C.T.'s attendance data. (See id. ¶¶ 4-18.) Indeed, accompanied breaks were encouraged by J.C.T.'s 2011-12 IEP, which suggested that breaks from the classroom during moments of escalated frustration would be helpful for J.C.T. (Feb. 15, 2012 CSE Meeting Notes and IEP 10.) To the extent the breaks became a problem, various Bell staff worked together to find ways to help J.C.T. get work done even while he was not in the classroom. (See supra note 9.)
Furthermore, after reviewing the data, Doyle and Fitzgerald concluded that the total absences "reflect[ed] 4% of J.C.T.'s scheduled core academic class periods which he was scheduled to attend during the 2011-12 school year." (Doyle Aff. ¶ 11; see also id. ¶ 12 ("I do not consider J.C.T.'s class attendance record to reflect a pattern of unexcused absences from class periods or to reflect a pattern of excessive absenteeism from J.C.T.'s core academic class periods."); Fitzgerald Aff. ¶ 18 ("[T]here were no more than about 12 unexcused absences of J.C.T. in total from J.C.T.'s core academic class periods . . . throughout the 2011-12 school year.").) This supplementary evidence supports the SRO's conclusion that the 2011-12 classroom attendance issue was sufficiently addressed through the District's 2012 BIP and FBA, which came up with targeted strategies to minimize target behaviors such as "work avoidance" and "leaving the classroom." (SRO Decision 17.)

III. Conclusion

For the foregoing reasons, Defendant's Motion for Summary Judgment is granted. The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No. 125), grant judgment to Defendant, and close this case. SO ORDERED. DATED: December 18, 2019

White Plains, New York

/s/_________

KENNETH M. KARAS

UNITED STATES DISTRICT JUDGE