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Unlikely Clarity - Reviewing Special Education Decisions in the Second Circuit

March 17, 2011

By  Shaina Kovalsky 1

Much of the discussion in special education case law centers on individualized education plans (IEPs) 2, those statutory creations required to ensure that children with disabilities that adversely impact their education, and who could benefit from special education services, receive assistance tailored to their particular needs. This is in order to ensure that these children receive that other statutory creation, a free appropriate public education (FAPE).

The seminal case on individualized education plans is Rowley, which concerns a deaf child named Amy.  The district and appellate courts had agreed with Amy’s parents that, although Amy was doing well in school, her disability created a disparity between her “achievement and potential,” and that she should be provided with a sign language interpreter, despite the school district’s protestations that this was not necessary. 3  However, the Supreme Court reversed, explaining that, “[w]hatever Congress meant by an ‘appropriate’ education, it is clear that it did not mean a potential-maximizing education.” 4  The Court held that the services provided to Amy under her IEP were adequate, and that the lower courts erred in ordering the school district to provide a sign-language interpreter. 5

In Rowley, the Court explained that courts should not “substitute their own notions of sound educational policy for those of the school authorities which they review.” 6  Instead, courts must give “due weight” to state administrative proceedings.  The Court then set up a two-part inquiry that made explicit what is otherwise implicit in the opinion, that Rowley is applicable only to cases about IEPs.  In these cases, a court must ask “First, has the State complied with the procedures set forth in the Act?  And second, is the individualized education program developed through the Act’s procedures reasonably calculated to enable a child to receive educational benefits?” 7  As the Supreme Court’s most thorough pronouncement on special education law, Rowley has proved very influential, and a body of case law has grown up around it.

However, special education decisions begin with a question that was not addressed in Rowley, namely, Is the child eligible for special education?  This question did not come up in Rowley because it was clear that Amy Rowley, a deaf student, had a disability that adversely impacted her education. The question in Rowley was not whether Amy was eligible to receive services, but rather what those services should be.

Eligibility is not always as clear as it was in Rowley, but these determinations, made in the first instance by administrative bodies, are as important as decisions about the efficacy of an IEP. After all, if a child is found not to be eligible – if he or she is found not to have a disability, or to have a disability that does not adversely impact his or her education, or to not be able to benefit from special education services – then the procedural safeguards and substantive requirements of an individualized education plan are irrelevant.

Statutory Schizophrenia

Civil actions regarding eligibility determinations have been particularly difficult for courts.  This difficulty stems in part from the statute itself. These actions are set up as ordinary civil cases in which the court bases its decision on “the preponderance of the evidence.”  The statute requires courts to “receive the records of the administrative decisions” and “hear additional evidence at the request of a party” before “basing its decision on the preponderance of the evidence.” 8 

In Rowley, the Supreme Court drew its “due weight” requirement from an analysis of this piece of the statute, explaining that the fact that it “requires that the reviewing court ‘receive the records of the [state] administrative proceedings’ carries with it the implied requirement that due weight shall be given to these proceedings.” 9  As this sentence makes clear, an action brought under subparagraph 1415(i)(2)(C) is an albatross. “Preponderance of the evidence” is the rule by which trial courts in civil actions weigh evidence in order to come to a decision.  It is not a rule routinely applied by a “reviewing court.” 10  In an action brought under subparagraph 1415(i)(2)(C), the state or district court is acting as a reviewing court but is, paradoxically, required to apply a trial court evidentiary rule.  It might be this statutory schizophrenia that has led at least a few circuit courts to look to Rowley for guidance on cases where it is demonstrably inapposite: eligibility determinations. 11

Unlike other courts, the Second Circuit has at least implicitly recognized this confusion, and has held that, despite Rowley’s notions of according “due weight” to administrative decisions, “deference to the state educational agency is not required when reviewing a determination that a student is an individual with or without a disability.”  The Second Circuit instead requires district courts to review eligibility decisions de novo, and itself reviews those district court decisions de novo.

The Second Circuit clarified these standards of review in Muller.  The issue there was whether Treena Muller “satisfied the definition of ‘emotionally disturbed’ as set forth in the relevant state and local statutes,” whether “the school district properly classified Treena as an individual with or without a disability in the first instance.’” 13  Muller provides a measure of clarity in an otherwise confused landscape, although it is not without its own ambiguities.  Part of Muller’s argument against applying the Rowley due weight requirement in cases like Treena’s is that, with primarily uncontested facts, the determination of whether Treena was “emotionally disturbed” is legal, i.e.,a question of statutory interpretation.  Because it was a legal question, the Second Circuit reasoned, “the district court was as well-positioned as the state administrative officials to determine Treena’s eligibility.” 14 

Unencumbered by the Rowley rule of deference, the Muller court held that the district court was “free to consider the issue of Treena’s eligibility de novo.” 15  The Second Circuit also held that it would review the district court’s conclusions de novo, consistent with how it reviews the legal conclusions of district courts.

The district and appellate court application of de novo review makes sense only in cases in which the facts are uncontested, so that the courts are really only reviewing the application of the law to the facts.  Even in these cases, determining whether a student has a disability under state and federal regulations is not as straightforward as “application of the law to the facts” sounds. Muller’s de novo standard has been applied by New York district courts, most recently in 2009 in Eschenasy, a case which makes no mention of whether the facts were uncontested.  In cases like Eschenasy, and the slightly older Corchado, district courts within the Second Circuit have applied the de novo standard of review as though it applies uniformly to all cases involving eligibility determinations under IDEA.

Still, the Second Circuit’s standard, as articulated in Muller and applied in Corchado and Eschenasy, has the effect of eliminating the confusion present in other circuits, in which courts attempt to apply Rowley’s due weight requirement.  Instead, the Second Circuit treats eligibility as what it is, a threshold question.  Although it is clearly a question requiring some degree of professional expertise, particularly in the factually complex cases in which it is more likely to be contested, eligibility for special education is also a preliminary determination which provides parents with a set of procedural and substantive protections. Without saying as much, the Second Circuit has transformed the confusion of the IDEA’s “preponderance of the evidence” civil action rule into an unlikely model of clarity, rightly putting off deference to administrative professionals until parents have obtained the statutory protections necessary to contest the decisions of those professionals.


1  Shaina Kovalsky is a volunteer attorney at the Empire Justice Center’s Rochester office, where her work includes research in the area of civil rights discrimination and special education law.  A graduate of Brandeis University and University at Buffalo Law School, she is currently in solo practice.  To discuss this article, you may contact her at
2   Board of Education of the Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 184 (1982).
3   Id. at 185
4   Id. at 197.
5   Id. at 209-10.
6   Id. at 206.
7   Id. at 206-07.
8   20 U.S.C. § 1415(i)(2)(C) (2009).
9   Rowley at 206 (emphasis added).
10   BLACK’S LAW DICTIONARY, Preponderance of the evidence (9th ed. 2009).
11   See Elida Local School District Board of Education v. Erickson, 252 F.Supp.2d 476 (N.D. Ohio 2003) (explaining the differences between Sixth and Second Circuit case law); Marshall Joint School Dist. No. 2 v. C.D. ex rel. Brian D., 616 F.3d 632, 636 (7th Cir. 2010), citing Alex R. v. Forrestville Valley Cmty Unit Sch. Dist., 375 F.3d 603, 611 (7th Cir. 2004) (“When that [district] court reviews the administrative decision it gives no deference to the ALJ's legal conclusions. … But on issues of fact, it must give the ALJ's findings due weight.”).
12    Eschenasy v. New York City Department of Education, 604 F.Supp.2d 639, 646 (2009).
13   Id. at 102.
14   Id.
15   Id


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