Second Circuit reaffirms: delayed school-location notice does not deny FAPE absent prejudice; overlapping IEP services can satisfy goals without music, hearing, or vision therapies

Introduction

In Ambrister v. Banks (2d Cir. Sept. 30, 2025), the United States Court of Appeals for the Second Circuit, in a nonprecedential summary order, affirmed the Southern District of New York’s grant of summary judgment for the New York City Department of Education (DOE) and its Chancellor. The guardian of R.D., a student with significant disabilities, sought full tuition funding at the private International Institute for the Brain (iBrain) for the 2021–2022 and 2022–2023 school years under the Individuals with Disabilities Education Act (IDEA), contending the DOE failed to provide a Free Appropriate Public Education (FAPE).

The appeal raised both procedural and substantive FAPE challenges: (1) a procedural challenge to the timeliness of the DOE’s school-location notice following a February 2022 IEP revision; and (2) substantive challenges asserting the IEP’s failure to include music therapy, hearing education services, and vision education services; objections to conditions at the assigned District 75 Horan School (including air conditioning and service delivery spaces); and claims that the assigned school could not implement the IEP due to staffing and student “grouping” concerns.

The Second Circuit affirmed, holding that the procedural delay did not impede parental participation or educational benefits and that the IEP was substantively adequate. The court also emphasized IDEA’s issue-exhaustion requirement for arguments not raised in the due process complaint and rejected speculative implementation and grouping challenges to the assigned school.

Summary of the Opinion

Applying de novo review of the district court’s summary judgment but giving “due weight” to the state administrative proceedings, the Second Circuit concluded:

Procedural FAPE: The DOE’s March 30, 2022 school-location letter, issued after a February 2022 IEP revision, was untimely but did not deny FAPE. The guardian already knew of the 2021–2022 assignment to the Horan School since June 2021, had visited it, and had chosen to keep R.D. at iBrain. The guardian did not show how earlier notice would have changed participation or decisions.
Substantive FAPE: The IEP was reasonably calculated to confer educational benefit even without music therapy, hearing education services, and vision education services, because their goals were addressed through other services (sign language supports, speech-language therapy, occupational therapy, and physical therapy). Allegations about air conditioning and separate service spaces were unexhausted. Claims that the assigned school could not implement the IEP (staffing and grouping) were speculative, particularly where the school attested to its capacity and ability to contract for services.
Result: The judgment for the DOE was affirmed; tuition reimbursement under Burlington/Carter was unavailable because the DOE offered FAPE.

Although a summary order carries no precedential effect, its analysis is instructive for IDEA litigation within the Second Circuit, particularly in reimbursement disputes involving unilateral placements such as iBrain.

Analysis

Precedents Cited and Their Influence

Rowley, 458 U.S. 176 (1982) and Walczak, 142 F.3d 119 (2d Cir. 1998): The court reiterated that an IEP must be “reasonably calculated to enable the child to receive educational benefits,” not to maximize a child’s potential. This benchmark framed the substantive FAPE analysis and supported the conclusion that overlapping services can satisfy therapeutic goals without bespoke therapies in every case.
Burlington/Carter framework (Sch. Comm. of Burlington, 471 U.S. 359 (1985); Florence Cnty. v. Carter, 510 U.S. 7 (1993); as described in Ferreira v. Aviles-Ramos, 120 F.4th 323 (2d Cir. 2024)): Tuition reimbursement requires proof that (1) the district failed to offer FAPE; (2) the private placement is appropriate; and (3) equities favor reimbursement. Here, because the DOE offered FAPE, the court did not need to reach the second and third prongs.
M.H. v. NYC DOE, 685 F.3d 217 (2d Cir. 2012); A.C. ex rel. M.C. v. Chappaqua, 553 F.3d 165 (2d Cir. 2009); W.A. v. Hendrick Hudson, 927 F.3d 126 (2d Cir. 2019); Lillbask v. Conn. DOE, 397 F.3d 77 (2d Cir. 2005): These cases anchor the Second Circuit’s “circumscribed” de novo review, requiring due weight to administrative expertise while reserving independent judicial judgment on legal interpretations. They supplied the review lens through which the panel affirmed the administrative determinations.
Schaffer v. Weast, 546 U.S. 49 (2005); N.Y. Educ. Law § 4404(1)(c); M.W. ex rel. S.W. v. NYC DOE, 725 F.3d 131 (2d Cir. 2013): The court again declined to resolve whether New York’s burden-allocation statute supersedes Schaffer’s default rule, noting that burdens matter only if evidence is in equipoise. Because the administrative decisionmakers found the IEP appropriate and the evidence was not evenly balanced, burden allocation was immaterial.
Procedural harm standard: 20 U.S.C. § 1415(f)(3)(E)(ii); M.H., 685 F.3d at 245; C.S., 990 F.3d 152, 162 (2d Cir. 2021): Not every procedural error constitutes a FAPE denial; a parent must articulate how the violation impeded rights, significantly impeded participation, or caused deprivation of educational benefits. This controlled the holding that the delayed school-location letter did not cause actionable prejudice.
Exhaustion and issue preservation: 20 U.S.C. § 1415(f)(3)(B); R.E. v. NYC DOE, 694 F.3d 167, 188 (2d Cir. 2012); T.M. v. Cornwall, 752 F.3d 145, 170 (2d Cir. 2014): The court enforced IDEA’s bar on raising new issues not included in the due process complaint, declining to entertain facility-condition challenges and a predetermination claim that were not properly raised.
Substantive services and music therapy: Cruz v. Banks, 134 F.4th 687, 694 (2d Cir. 2025) and Grim v. Rhinebeck, 346 F.3d 377 (2d Cir. 2003): The panel relied on Cruz to hold that music-therapy goals can be met by other IEP services and on Grim to reaffirm that IDEA guarantees appropriateness, not every desirable service.
Prospective implementation challenges and speculation: R.E., 694 F.3d at 187, 195; M.O. v. NYC DOE, 793 F.3d 236, 244 (2d Cir. 2015) (per curiam); J.C. v. NYC DOE, 643 F. App’x 31, 33 (2d Cir. 2016): The court rejected speculative assertions that an assigned school will fail to implement an IEP, especially where the school attests to capacity and the ability to contract for providers. “Grouping” evidence, in particular, is not the kind of non-speculative, permissible retrospective evidence.
Predetermination and meaningful participation: T.P. v. Mamaroneck, 554 F.3d 247 (2d Cir. 2009): While predetermination can deny meaningful participation, the court found the claim unpreserved and, in any event, unsupported by evidence of a policy-level refusal to consider music therapy.

Legal Reasoning

The court’s analysis proceeds in the familiar IDEA sequence: (1) determine whether the district offered FAPE (procedurally and substantively); only if not, consider private placement and equities under Burlington/Carter.

First, on the procedural claim, the panel accepted that the March 30, 2022 school-location letter was late relative to the February 2022 IEP revision. But the touchstone is prejudice. The guardian had received an IEP and Horan School placement in June 2021 for the 2021–2022 school year, visited and rejected that placement, and had already chosen iBrain. She also categorically objected to District 75 placements (which include Horan) before the March letter. On those facts, the late letter did not impede participation or cause a deprivation of educational benefits. The court also noted the regulatory requirement that an IEP be in place at the beginning of the school year (34 C.F.R. § 300.323(a)), which the DOE met in June 2021; the February revision did not alter the school recommendation.

The court further disposed of a predetermination argument (alleging DOE had a policy against offering music therapy) because it was not raised in the due process complaint, as IDEA requires. Even if considered, the record lacked evidence of a blanket policy and showed the guardian had opportunities to discuss music therapy in meetings and a phone call, which defeats any claim of a “closed mind.”

Second, on the substantive FAPE challenge, the court emphasized Rowley/Walczak’s “reasonable calculation” standard and relied on Cruz to confirm that an IEP may be appropriate without music therapy, hearing education services, or vision education services if their goals are adequately addressed through other services. The IEP here specified robust speech-language therapy (five 60-minute individual sessions per week), occupational therapy (five 60-minute sessions per week), physical therapy (four 45-minute sessions per week), and sign-language supports targeting communication, visual tracking, focus, movement, and self-care. Given that overlap, the IEP satisfied IDEA’s substantive standard even if the student might also have benefited from the omitted therapies.

The court then enforced IDEA’s issue-exhaustion rule, declining to consider challenges to building conditions (air conditioning) and the availability of separate service areas because those contentions were not raised in the due process complaint. Finally, it rejected claims that the Horan School could not implement the IEP due to staffing and student grouping. Under R.E. and M.O., prospective challenges must be grounded in non-speculative evidence of actual inability to implement. Here, the Horan assistant principal attested that the school could implement the IEP and would contract with providers if necessary. “Grouping” contentions are not the kind of admissible, non-speculative retrospective evidence that can defeat the assigned school’s capacity to implement. On this record, the panel deemed the implementation objections speculative and insufficient.

Impact and Practical Implications

Although this disposition is a summary order without precedential effect, it reinforces several recurring points in Second Circuit IDEA litigation:

Procedural violations require prejudice. A delayed school-location letter, without more, will not establish a denial of FAPE where the parent already knew and rejected the placement and cannot show the delay impeded participation or benefits.
Overlapping services can satisfy goals. Following Cruz, parents face an increasingly high bar to compel music therapy, hearing education services, or vision education services if the IEP plausibly addresses their goals through other supports.
Exhaustion is enforced. New objections to building conditions or service-delivery spaces must be preserved in the due process complaint. Courts will decline to consider unexhausted theories.
Speculation will not defeat implementation. Assertions about staffing shortfalls, provider availability, or grouping must be backed by concrete, non-speculative evidence of actual inability to implement; an assigned school’s attestation of capacity and ability to contract for services is powerful rebuttal evidence.
Burden-of-proof debates often do not matter. The Second Circuit again declined to resolve whether New York’s statute overrides Schaffer’s default rule, underscoring that burden allocation is largely academic unless the evidence is in equipoise.

For parents and counsel considering unilateral private placements like iBrain, this order underscores the need to:

Document concrete, contemporaneous evidence that the assigned school actually cannot implement the IEP.
Raise all intended challenges—services, placement conditions, implementation—in the due process complaint.
Show how any procedural misstep caused real-world prejudice to participation or educational benefit.

Complex Concepts Simplified

FAPE: A Free Appropriate Public Education is a program individually tailored through an IEP to enable a child to make appropriate progress. It need not provide every conceivable benefit or maximize potential.
IEP: The Individualized Education Program is the written plan detailing a student’s goals, placement, and services. Under federal regulations, an IEP must be in place at the start of each school year.
Burlington/Carter tuition reimbursement: Parents who unilaterally place a child in private school can seek reimbursement only if the district failed to offer FAPE, the private program is appropriate, and the equities favor reimbursement.
Procedural vs. substantive FAPE: Procedural claims focus on how the IEP was developed and communicated; substantive claims focus on whether the IEP’s content is reasonably calculated to confer educational benefit.
Predetermination: An IDEA violation occurs if the district closes its mind to adding services or placements before meeting with parents. Evidence typically includes proof of a policy-level refusal or refusal to consider parental input.
District 75 (NYC): A specialized set of DOE schools serving students with significant disabilities. The Horan School is one such campus.
Speculative implementation challenges: Courts will not assume an assigned school will fail to deliver listed services; parents must present non-speculative evidence of actual inability to implement the IEP as written.
Grouping: The practice of grouping students for instruction. Generalized grouping objections are disfavored as speculative unless tied to concrete, non-speculative evidence undermining the IEP’s implementation.
Issue exhaustion: Under IDEA, parents must include all alleged IEP defects and placement problems in the due process complaint. New arguments cannot be added later without consent.

Conclusion

Ambrister v. Banks reinforces core IDEA tenets in the Second Circuit: no FAPE denial without procedural prejudice; IEPs measured by reasonable calculation, not maximization; services may be adequate where their goals are achieved through overlapping supports; issue-exhaustion rules are strictly enforced; and speculative implementation challenges will not justify unilateral private placements. The court’s reliance on Cruz v. Banks underscores a growing judicial comfort with IEPs that meet therapeutic goals without mandating specific therapies such as music therapy. For practitioners, the message is clear: preserve all issues early, marshal concrete evidence of actual implementation barriers, and be prepared to show how any procedural lapse impaired participation or educational benefit. While nonprecedential, this ruling is a detailed roadmap for how similar reimbursement disputes are likely to be analyzed in the Second Circuit.

Note: This commentary discusses a Second Circuit Summary Order, which by rule does not have precedential effect. It nonetheless offers persuasive guidance on IDEA litigation strategies and standards.