## Facts

- Three consolidated IDEA tuition-reimbursement disputes involved parents of children with autism and the New York City Department of Education (DOE).
- For each child, DOE developed an individualized education program (IEP) proposing a public-school placement.
- The parents rejected the proposed placements and unilaterally enrolled their children in private schools, then sought reimbursement, alleging DOE failed to offer a free appropriate public education (FAPE).
- In each case, an Impartial Hearing Officer (IHO) awarded reimbursement to the parents.
- In each case, a State Review Officer (SRO) reversed and found DOE offered a FAPE, relying in part on testimony describing services the child purportedly would have received that were not written in the IEP.
- Federal district courts reached mixed outcomes: two ruled for parents; one ruled for DOE; appeals were consolidated.

## Issues

1. Whether IEP adequacy may be upheld using testimony about additional services not stated in the IEP (“retrospective testimony”).
2. How federal courts should allocate deference when IHO and SRO decisions conflict.
3. When procedural violations (including missing FBAs or parent counseling/training) amount to a denial of FAPE.
4. Whether IDEA requires parental participation in selecting the specific public-school site that will implement an IEP.

## Decision

- The court held IEPs are evaluated prospectively, based on the information available when parents decide whether to accept the placement, and may not be defended with retrospective testimony that materially adds services not in the IEP.
- The court rejected a strict “four corners” approach: testimony may explain listed services and implementation details so long as it does not materially alter the IEP.
- The court held greater deference is generally owed to the SRO as the final state decisionmaker, but courts may rely on a well-reasoned IHO decision where the SRO’s reasoning is insufficient.
- The court held procedural violations deny FAPE only if they impede the child’s right to FAPE, significantly impede parental participation, or deprive educational benefits; omissions like FBAs or parent counseling/training are not automatically outcome-determinative.
- The court held parents have a right to participate in IEP development but not a substantive right to participate in selection of the specific school building, so long as the assigned site can implement the IEP.
- Disposition: reversed the parent-favorable judgment in R.E.; affirmed the parent-favorable judgment in R.K.; affirmed the DOE-favorable judgment in E.Z.-L.

## Legal Principles

- An IEP’s adequacy is judged prospectively; a district may not cure deficiencies by after-the-fact testimony about services not included in the IEP.
- Explanatory evidence about how enumerated IEP services would be delivered may be considered if it does not materially change the IEP’s substantive program.
- In New York IDEA review, federal courts generally defer to SRO decisions, but may credit an IHO where the SRO decision lacks persuasive reasoning.
- Procedural violations warrant relief only upon a showing of statutory prejudice (impeded FAPE, impeded parental participation, or loss of educational benefits).
- IDEA guarantees parental participation in developing the IEP, not in choosing the particular school site assigned to implement it, provided the site can carry out the IEP.

## Conclusion

The Second Circuit clarified that IDEA tuition-reimbursement disputes turn on the IEP as written at the time of the placement decision, limited the use of retrospective testimony to justify an IEP, instructed courts to defer primarily to reasoned SRO decisions (with flexibility where the IHO is better reasoned), applied a prejudice-based test for procedural violations, and held parents need not be included in school-site selection if the assigned school can implement the IEP.


R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012)