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IMPARTIAL FORMAL HEARING PURSUANT TO
EDUCATIONAL LAW SECTION 4404(1) AND
COMMISSIONER OF EDUCATION REGULATION
SECTION 200.5 BEFORE ESQ.,
IMPARTIAL HEARING OFFICER
_________________________________ In the Matter of the Complaint of DECISION Student with a Disability Against the XXXXXXXXXXXX ___________________________________
PROCEDURAL POSTURE
This Impartial Hearing Officer was appointed to preside over an expedited impartial hearing and was contacted by the District on March 22, 2011. Pursuant to a pre-hearing conference that was held on March 24, 2011, it was mutually agreed upon that the hearing would commence on April 6th, and April 7th, based upon the availability of witnesses and other scheduling issues.
At the commencement of the hearing on April 6, 2011, there were initially several procedural issues that were raised. The initial procedural issue dealt with the discovery document demand by the attorney for the Parents by means of a letter to counsel for the District dated April 1, 2011. Said document demand was marked as IHO Exhibit 1, and contained six (6) bullet point items and the final bullet point item request was that the documents be produced on or about April 5, 2011. The first bullet point item was the reduction of redacted profile of group , participants; second, was the BIP enforced on January 21, 2011; the third was session notes from group sessions; fourth, was attendance logs from 1:1 and group fifth, was copies of videotapes from bus(es) miles traveled by [the student] from January 3rd through 20, 2011.
After a lengthy discussion of said issues, which involved a resolution of the issue of the scope of the hearing, this Hearing Officer rendered a ruling regarding compelling the District to provide the documents. This direction was predicated upon a ruling that this Impartial Hearing has inherent jurisdiction as a Hearing Officer to preside over hearings to regulate and control the discovery issues to facilitate the hearing process. The attorney for the District presented SRO decisions supporting its position that this Independent Hearing Officer did not have jurisdiction over said issues. This Hearing Officer ruled that the 1994 SRO decision did not preclude this Hearing Officer from dealing with issues presiding over discovery and document production. It was necessary to resolve the issue of the scope of the hearing in order to rule on the relevancy of the requested documents. It was the Parents’ position that the scope of this expedited due process hearing dealt with the disciplinary issues, in particular, a review of the manifestation determination of the Manifestation Team, that the Manifestation Team erred in determining that the behaviors of the Student, which resulted in a finding that charges 1-4, were not substantially related to the Student’s disability, and that this Hearing Officer find that the Manifestation Team erred in determining that the IEP had been implemented. There were protracted oral arguments, review of the Hearing request and applicable regulatory provisions. In particular, this Impartial Hearing Officer reviewed the following: 201.4c12, 201.4e, 201.11a3. The Hearing request indicates the Parents requested a hearing from a determination that the Student’s behavior was not a manifestation of the Student’s disability.
This Hearing Officer ruled that to fulfill the intent of the regulations regarding expedited hearings, the initial threshold issue was whether the student’s behaviors which led to his suspension was a manifestation of his disability. The second tier, the implementation of the IEP could be resolved as part a bifurcated proceeding of the Parents’ due process hearing request and/or in a subsequent due process hearing request. To facilitate this ruling, IHO Exhibit 2 was marked and admitted, which is a due process complaint notice of the Parents’ dated March 4, 2011, and the District’s response dated March 21, 2011.
SUMMARY OF FACTS
The District’s first witness was ., the Principal of the Student’s school, T-86, who imposed a five day principal’s suspension pending the Superintendent’s hearing, T88 D.S. identified D-1 as the notice of charges which formed the basis of the Principal’s suspension, triggering the Superintendant’s hearing T90. At the Superintendant’s hearing, it was the determination of the Superintendant to suspend the Student pending a disciplinary hearing which was subsequently held. At a subsequent disciplinary hearing, the Hearing Officer rendered 22 Findings of Fact, finding the student guilty of 1-4 counts T108. The matter was subsequently referred to Manifestation Team. The determinations of the Manifestation Team were and are the subject of this hearing.
On cross-examination it was revealed that the witness never personally observed any of the alleged incidents resulting in the suspensions, determinations and long term suspensions, the subject of this hearing, T113.
During the course of said testimony, an evidentiary issue arose as to usage of the transcript from the disciplinary proceeding. After the witness identified said transcript, the witness was discharged. Counsel agreed to review said transcript redact irrelevant portions and then seek to have said transcript admitted into evidence.
The next witness was Mr. , the Middle School Special Education Coordinator, T-144, who has a BS in Psychology, MS in Psychology, with a permanent, SDA Certification, and Advanced Studies Certification, T-145. He has been with the District for four (4) years, and oversees approximately 350 Special Education students, T-146. His job responsibilities include CSE meetings, evaluations, future evaluations and IEP and manifestation meetings, T-146. He also supervises School Psychologists.
He is familiar with the Student who is classified with social emotional difficulties and attention deficits, T-147, and cognitively is to T- 148. The Student receives Resource Room services for 40 minutes per week, and is familiar with the disciplinary charges, having attended the Manifestation Team meeting, T-148, which was initially scheduled for January 31, 2011, and was subsequently rescheduled at the Parents’ request and held on February 3, 2011. The witness identified D-3, the summary of the manifestation meeting and D-4, T-151, the invitation to the original manifestation meeting, T-154, and D-5, the second invitation to the meeting that was held on February 3, 2011, T-156. The witness reviewed the invitations which informed the Parents that they could be accompanied by anyone of their choosing, T-157, who has knowledge or special expertise regarding the child, including related services providers. It also informed the Parents that they could submit evaluations to be considered by the Manifestation Team, T-157. The charges dealt with the sexual misconduct of the Student which included attempting to grab a female student identified as , grabbing her breasts and grabbing her buttocks. In addition, the Student was charged with using inappropriate language, such as “slut alert”, “slut”, and “whore”, T- 149. There were additional charges relating to physical altercations with another male student, insubordination to a teacher and District Administrator by failing to release a male student from a head lock, T-150. The Student was ultimately found guilty of all eight (8) counts at the Superintendant Disciplinary Hearing, triggering the Manifestation Team’s review of the nexus between the student’s disciplinary conduct and his disability.
In attendance at the Manifestation Team meeting, were the witness, , the School Psychologist, ., the Behavioral Consultant, ., the Guidance Counselor,
, the Therapist, , the Special Education Resource teacher, , the Social Worker, , the Guidance Counselor, the Parents, ., the Principal, the Executive Director of Special Education, , General Education teacher, and ., the attorney for the District, T-152. The witness testified that the attendees were all individuals who had contact with the Student, know the Student, has contact on a daily basis, which includes related service providers. The meeting lasted approximately one and one-half hours. The witness explained that if the Manifestation Team felt that the Student’s conduct was substantially and directed related to his disability, T-159, a CSE meeting would be triggered reviewing and/or modifying the student’s BIP based upon a FBA. The witness acknowledged that he Chaired in the Manifestation Team meeting and provided the team with a packet, D-6.
The findings of the Hearing Officer in the Disciplinary Proceedings, was that the Student was guilty of all eight (8) counts, attempt to touch, touching, inappropriate sexually oriented words such as “slut alert”, “slut”, and “whore”, fighting, swearing, insubordination to teachers and administrators. Manifestation Team also reviewed the IEP, and the participants spoke regarding that the IEP was being complied with and that the related services were being provided to the Student.
The Team reviewed the Student’s progress, and the Student was achieving ’s and ’s in the core subjects, and the Student was conducting himself well in the classroom. The Parents raised concerns whether the conduct was affecting the grades.
There had been an independent evaluation prepared by ., at the ., T-161, which provided a diagnosis , in particular, as well as major , T-167. The witness pointed out that the Student suffered from a lack of social reciprocity, but that sexual behaviors or misbehaviors did not exist in the Student’s background as provided to the evaluators or as evidenced by the District staff observations and/or District proceedings, T-168.
The FBA was reviewed regarding the Student’s behaviors as targeted in the FBA and the Student was making progress replacing bad behaviors with good behaviors. The FBA did identify as a target, the Student’s conduct on buses and in physical education class. The bussing issues in the past pertained to failure to stay in his seat and physical aggression with other students, T-171.
The witness stated, ., the Behavioral Consultant, participated in the Manifestation Team Meeting and indicated that the Student’s sexual misconduct and misbehaviors were new to the Student, T-172, and T-173.
The witness indicated in the past, physical altercations by the Student would escalate which was consistent with his disability and it would be difficult to calm the Student down, T-173.
In reviewing D-1, the notice of charges, in particular 1-4, they were carefully discussed, as was the the diagnostic criteria for which did not contain any specific reference to sexual behaviors, T-174, that the Student understood directions of “yes, no, and stop”, T-174, and that the Student chose to not comply with the female student bus rider’s request to stop and repeated his physical touching and contact, T-174.
The witness stated, interviewed the bus driver in terms of the Student’s sexually inappropriate conduct, T-176. Said conduct was not contained in any prior FBA’s, and that the District and District staff were not made aware of said behaviors and misbehaviors on the bus, T-177.
It was revealed that the Student and the female student bus rider, ., rode on the bus on a daily basis nor was there prior misconduct, T-179. One of the factors of the Manifestation Team’s determination was that the conduct was not related to the Student’s disability, T-180, was that the female student made demands for the Student herein to stop and chose not to stop his conduct, but said conduct was not related to the disability and the support plan was appropriate. Said determination was based upon a consensus of those attending, and such consensus was obtained and verified by asking those who did not verbally express their feelings on the nexus issue or whether they agreed with the Parents that the conduct was related to the Student’s disability, T-182.
The Manifestation Team found that the Student’s conduct towards the other male student, physical altercation, the head lock, using vulgar language, failing to comply with the requests of a teacher and District administrator to stop and desist, were related to the Student’s disability, T-181. The Manifestation Team’s consensus was that the Student made a voluntary decision regarding the female student and it was a bad decision by the Student, T-184. In addition, the IEP was summarized.
On cross-examination it was revealed that the witness did not provide any related services directly to the student, T-187. Also, there were no contemporaneous notes, no designated note taker, that the witness prepared the summary after reviewing notes with , T-189.
The student’s IEP was discussed and that participants acknowledged that the IEP was being implemented, T-190. , the School Principal, read charges, T-191. The charges were read, everybody was asked their opinion. The witness reported that testified at the Superintendant’s hearing, the progress reports were referred to, T-192, indicating progressing inconsistently towards goals, T-196, including social/emotional goals. The goals worked on included behaviors in structured unstructured situations, such as busses, and hallways, T-198.
There have been repeated incidents of physical aggression, i.e.; pushing past teachers, physical altercations with peers, prior behaviors on bus, T-198. However, Mr. . and the Manifestation team felt that it was making a significant leap from socially unacceptable behaviors to repeatedly inappropriately touching a girl, T200, even though the Student has been involved in behaviors of pushing past staff, T200, and even though the Student was involved with physical altercations with peers.
The witness did not observe the bus videotapes, but it was reported that the Student egged another student towards improper sexual conduct towards , the victim, T202. There have been a number of incidents that the Student has been cited for physical aggression, however the Student knows that difference between yes and no and stop, T208, which was relied upon by the Manifestation Team reaching its determination.
The witness reviewed the Manifestation Team determination that the 5-8 charges were related to the Student’s disability since when he was fully escalated he cannot stop, T-212.
The witness made a distinction between following directions from adults as opposed to peers T-214. The Student had difficulty with adult authority, but did not see it with peers. The previous conduct on the bus included getting out of seat, and physical aggression. With the incident with the Student was not angry, upset, and there was no aggression. When the Student is enraged it overwhelms him, T-214. Also Mr. has seen the Student having difficulties complying with adult directives, T-215, but does not see it with peer on peer T-215. Also another difference is that the Student chose the time place and young lady to repeatedly do it in a willful manner, T-216. Also the IEP social goal 10 was not intended to cover behaviors like 1-4 since the behaviors were never seen before, T-220, not even in the C.U. reports, T-230.
The witness reviewed the progress reports. is progressing inconsistently which means the Student is still working on it, T-221. Mr. reviewed the C.U. report and the Rorschach test which is a projected norm that the Student often becomes uneasy when he interacts with people that he finds threatening, T-232 and stated that the Student does not find threatening, T-232. The manifestation team looked at physical aggression and sexual behaviors as two separate venues since they are far different emotions, T-237.
The next witness was , the School Psychologist, at the District middle school building. . has been at the District for approximately 11 years T245. He has an Undergraduate Degree from Adelphi, Graduate Degree from St. John’s, and has a permanent certification as a School Psychologist. He is familiar with the Student who entered the District in Sixth Grade, with a 504 Plan T246. He is classified with delays in social emotional skills, mostly related to authority figures as well as peers, with a full I.Q. at T247. was on the Manifestation Team, who reviewed a host of charges 1-8. He was not present at Superintendent’s Hearing, T248.
. participated in the Manifestation Team as a related service provider, i.e.;
T249. He provided group in the 5:1 ratio on a weekly basis. . remembers reviewing the manifestation packet, which included as C.U. reports, progress reports, report cards, FBA, and BIP T251. At the Manifestation Team meeting, he advised the participants of the current level of services, background information, based upon the C.U. report T253. The witness recalled that at the Manifestation Determination Review, discussed the diagnosis indicating that the Student had struggles with social repriocity with adults and authority figures, making it difficult to maintain eye contact. The witness reviewed T255, the diagnosis criteria. The witness reiterated that according to the Student’s profile, there never had been any observation or reports of any sexual misconduct and there was nothing in the C.U. report regarding sexually inappropriate behaviors. The witness has observed the Student in positive peer relations. The witness indicated that based upon his review of the C.U. Report T261, there was nothing in there to support the belief that the sexual misconduct could be a manifestation of his disability. The witness was familiar with the FBA and the BIP T262. The FBA was based upon the observations from T264, interviews with the bus driver, there has never been a problem before with any sexually harassing behaviors. Neither the FBA nor the BIP targeted behaviors exhibited in charges 1-4 since they were pre-existing behaviors targeted behaviors. The witness,
., indicated he felt the Student understood the word “stop”, it was a discussion at the Manifestation Team meeting that the Student’s IEP was being implemented T270, in particular, the services has been provided by the himself. It was reported that the student , at times on the bus, wore her backwards over her chest and buttock area to protect herself.
In addition, the misconduct exhibited by the Student on the bus by the Student was cursing, yelling, crawling under the seat, throwing objects, and not staying in the seat while the bus was mobile T269. Plus, there was no discussion that the IEP goals were inappropriate or the behavior intervention plan was not sufficient T271. opined that he felt the Student’s actions were deliberate and conscious effort T271 and that he actually chose the time and place so he would not get caught.
The witness thought it was important that any sexual misconduct was never seen across the various domains as you typically see with children with T273-4 .
On cross, it was revealed that the Student’s group did not take an effect until November, when the Student’s IEP was amended, but for the most part, the Student did not attend when he was in out of school suspension and not in the building.
The witness, , was quizzed regarding the Student’s progress in and measuring the Student's progress. was unable to provide any verifiable information or methodology except that it was a collective effort, T283 since it was difficult to place a percentage allocated to group, other than to say a large part of was group but also a large part was outside sources not just clinical impressions, T285 since was based upon collective reports in the school system and after consulting with teachers T28. the witness was quizzed regarding whether the Student acted out when he is uncomfortable in social situations and . stated that he felt it was more that demands are placed upon the Student for an activity he does not prefer. The Student tends to have difficulty taking directions or following directions from adults that he may not know or feel comfortable with, T287. the witness opined that the student does have friends, who have gone over to Students’ home and that live in the neighborhood T289. They spend time outside and inside school and on the bus. The witness, observed the boys interacting socially correctly.
The witness, . was quizzed regarding a goal that the Student would follow the rules of physical interaction by keeping hands, feet, body, and other materials outside the personal space of others for the entire day, and then that is addressed in several ways based upon real life experiences, sharing thoughts of the other children and interactions, and they focus with the rules of physical behaviors in different settings but the witness did not observe the Student in these settings, T297. The student could choose to ignore the requests of a peer, T301.
The witness felt that the Beck Youth Inventory, the Diagnostic Scale, BASC, Conner's Global Index, are all valid and standardized tests T 307, but House Tree Person Family Drawing is projective measure and is not statistically sound. According to the Rorschach T317, it was revealed that a Student has the tendency to engage in behavior that may be maladaptive when attempting to interact in a social situation, however, the witness did not feel that awkward social situation, the same as grabbing a breast, would be considered maladaptive social behavior T317.
The witness indicated on redirect, the witness acknowledged the C.U. report diagnosed a major disorder, T-329. The Student's withdrawal is a symptom. The CSE acknowledged major as alert on the Student’s IEP based upon a finding of the CSE. There have been no signs of except when the Student interacts with some adults when he withdraws, T-331.
Mr. stated that contacted the related service providers; the therapist, Special Education Resource teacher, the core teachers, for preparation of the behavioral support plan, T-332 The witness was not aware that made the Student uncomfortable, T-332.
When at disciplinary phase, the Student often became non-communicative or denies the event. However, when the Student wants to engage in preferred activities, the Student generally does not respond to directions, T-335. The teacher was not aware of sexually inappropriate comments. It is not part of the Student’s disability to choose to ignore directions of peers, T-338. The witness reviewed D-6. He has observed the Student interacting in the cafeteria, T-339. The Student sits with males and females at the lunch tables, and is with females in classroom, hallways, and buses. There have never been reports of sexually inappropriate conduct in lunch room, classroom or school hallways, T-340.
The witness had observed the Student in awkward social situations, but interacts appropriately, for the most part. The Mr. believes that a classroom observation is exceptionally important for evaluating and was critical of evaluations in 1:1 settings, such as the C.U. Report. The Student could react differently than in a natural setting, i.e.; school, home, and observations is natural settings is important to provide comprehensive, well rounded evaluations, T-342. The Student does shut down with non-responsiveness which could affect testing. The witness did not see substantially amount of difficulty adapting to his environment. The witness did not see a lot of avoidance in social situations, T-349, with peers. The Student started to engage, but will withdraw from social situations. The Parents never expressed concern that the Student had inability to understand social behavior, T-346, nor were they concerned that the Student was acting in a sexually inappropriate manner, T-347.
On re-cross, the witness was questioned concerning the May, 2010 incident, where the Student was running up and down the bus aisle, using inappropriate language, which is not appropriate social interaction. There was a February, 2010 incident that the witness was not aware of. It was also acknowledged that typical peers engage in altercations in school, school or bus, speak to peers inappropriate ways, but does not necessarily need to be classified.
The District rested but reserved its right to call rebuttal witnesses
The Parent’s first witness was Dr. , with an MSBS, and PhD from 1994, T-388. Dr. ’s specialty is Pediatric Disabilities, and she has held positions as: Assistant of Professor of Psychology, Director of Community Services for Autism, Founder of the
T-389. The witness has been an expert in the field for over thirty (30) years, T- 392.
Dr. testified she had reviewed D-6/ P-3the C.U. Report and Addendum, P-4, T 399. There was a recent evaluation which resulted in a report which was provided to and reviewed by Dr. The School District Attorney objected since the report was not provided to counsel as part of the five (5) day disclosure nor was the existence of the report disclosed. The District Attorney was provided Voir Dire T409 regarding whether Dr. could exclude references from the report. Dr. was allowed to testify based upon the C.U. Reports, her background, experience and observations, and meeting with the Parents and Student T424.
Dr. reviewed D-7, the diagnostic criteria for condition, T428. Dr. testified in general terms regarding the condition that places students at risk for not understanding physical cues, lacking emotional repricocity because of the failure to understand others, failing to understand social cues and nuances, making it difficult to establish social relationships T 427. It is difficult to understand non-verbal cues, i.e.; punching in arm may be a friendly exchange or could be unfriendly T428. This is the case especially in an unstructured setting T432 where events happen quickly, requiring quick interpretation and lightning fast reflexes to determine subtle nuances between people interacting. Dr. reviewed the C.U. report and in particular the finding that the Student may have "poor capacity to adapt to his environment may make it difficult to accurately interpret what is going on around him”, T429
The charges against with students with happen frequently because of difficulty understanding social cues, social rules. makes it difficult to generalize standards of social rules and apply it to different social settings.
The witness explained the Student would have difficulty understanding two girlfriends, calling each other “slut” T436. In addition, Dr. responded to the District testimony that the Student was wrong to touch ’s breast and buttocks T437. There is a distinction, between knowing touching is wrong intellectually but that does not mean a child can generalize that to a fast paced unstructured setting and can control his impulsivity T438. Dr. stated most can tell you in a quiet place what stop means but to apply that to a different social setting requires processing additional information T440. There are two aspects of stop; one is the social context and the second is to process information quickly enough process that information. makes it difficult to generalize to particular situations because of difficulty comprehending nuances T441.
Dr. reviewed D6 the C.U. report page 7 regarding verbal comprehension and the Student showed significant weakness in requiring him to draw on knowledge gained from formal and informal educational opportunities which assess knowledge of general principles in social situations, T441 even though the Student was cognitive functioning, T445. According to Dr. , D-6, subtest concerning social judgment, the Student has poor social understanding T445, the Student needs assistance in how to behave, how to gain relationships. The Student was only recently diagnosed with and has not had the benefit from training over time T 448. It is difficult to empathize because has poor insight T 450, does not understand intentions, i.e.; punching could be horseplay or could be anger, difficult to process in the speed of the moment, T451, especially in unstructured settings T452.
Dr. was questioned whether touching could be a planned or willful T452, and she indicated those afflicted with are not able to interact, engage in socially appropriate conduct T453. With there is general delay in acquisition of general language skills with pragmatic language usage T454. Dr. tested the Student's executive function, which includes working processing speed. A student with is low in social regulation with the introduction to stimuli making it difficult to maintain emotional balance, and making it difficult not to over react at times T455, difficult to control emotional outburst T455. The Student is swept up in the emotionality of moment, comes up against standards of conduct, i.e.; jobs, schools, friendships. Children with may exhibit behaviors no longer appropriate at that age, T450. The Student needs a lot of continuing interventions T 457, but also grabbing is not much different from hitting, sexual situations have greater social nuances. The charge are not that different when we think of the Student's inability to control emotional expression, T 457. Dr stated that the student’s charges 1-4 are directly and substantially a manifestation f his disability.
On cross-examination, it was revealed that there were no reports, but Dr. took notes during her evaluation of the Student T463. A review of her CV revealed that Dr. has consulted with the parents in districts and is the Director of the T465. Dr.
was sought out by the Parents for review of the Student’s prior diagnosis and Dr. . also participated in the November CSE meeting, after a prior manifestation meeting. Dr. . agreed with the diagnosis T468, but the major comes and goes.
Dr. administered the BRIEF diagnostic interview to determine the Student’s executive function T469. The BRIEF, is a standardized test T470. Dr. interviewed the mother and Student separately but on the same day, and the father afterwards T470. Each segment of the evaluation interview took approximately 45 minutes. Dr. . also reviewed and IQ test, but Dr. does not treat the student T472.
Dr. did not attend the Manifestation Team Meeting of February 3, 2011, but did the CSE meeting T476. The Student is performing reasonably well academically. Dr. did not speak with any one at the District about the charges, nor see the Student's progress reports, nor report card, T478.
Dr. reviewed the behavior reports and charges. Dr. . also reviewed , the diagnostic criteria for T481. D-7 refers to the qualitative impairment of understanding and utilizing social cues i.e. non verbal behaviors, facial expressions, body posture T481. Dr. ’s observations of the Student took place at home but there were no school observations T484, nor bus, nor cafeteria, nor with peers, T485. Dr . admitted that the general type of conduct occurs frequently but not with the specific conduct, T485. Dr has seen the conduct but not frequently, T486. The question from the District’s attorney was ”Q. But is it common, is it frequent that a child with would grab a child’s breast--- a girl’s breast—when he’s in grade? A. I wouldn’t say it’s frequent.”
Dr . has not written an article on children with condition in a school setting sexually harassing female peers, T496 . Dr . was not aware of the time frame over which the charges 1-4 took place. Dr testified that slapping an elementary student and grabbing a girl’s breast and buttock are all aggressive behaviors, T502. There is a difference in cultural values but not in the form of behavior, T503 because they are similar as to impulsivity or social inappropriateness. It was acknowledged that the IQ tests administered by the District were timed tests and that behavior impacted IQ scores. Dr. admitted that a student who forces himself upon another is a difficult question to answer since it could or could not be related to T501. Dr. . also admitted however, all aggressive behavior is part of the same realm T503.
The Parents’ next witness was Dr. . The District objected to the testimony on the following basis, 5-Day Notice, repetitiveness, undue surprise, an evaluation solely for the purposes of this litigation, lack of reference to sexual content, T521.
Counsel for the District was granted Voir Dire regarding Dr. T521.
Dr. is a and treats and evaluates adolescents and adults on the including Dr. held an internship at the and was supervised by Dr. . Also a member of the was a , who was the Student as part of its . There were no references to the sexual behaviors listed on the Dr. CV. Furthermore, Dr. spoke with Dr. prior to the meeting with the Student and his Parents.
This Impartial Hearing Officer precluded the witness from testifying because it would be duplicative and repetitive T528. However, to ensure that the Parents had an opportunity to present its case, this Impartial Hearing Officer allowed the Parents to recall Dr. on the issue of sexual behaviors, or to call a r who had the student in the part of the . The rationale being that there was a trained provider and not only an evaluators like Dr. . and Dr. . T536.
The counsel for the Parents reserved the right to recall Dr , T537, as part of this discussion but not at the close of the Parent’s case. However, there was a subsequent transcribed proceeding of counsel for the school District counsel’s objection to Dr . being recalled since the Parents' rested their case without reserving their rights to recall Dr. This IHO allowed Dr to be recalled.
The Father was called, who was a licensed attorney, having practiced as a in D.C., has worked for a large law firm in New York City, and is currently an at a T558.
The Parents sought to introduce the Student’s discipline file in its entirety. This was denied based on the 5-Day Rule. Instead, in a methodical fashion, the witness’ recollection was refreshed as to a series of incidents involving the Student T568.
The Father reported receiving many phone calls from the District staff about the Student’s disciplinary behavior, although the witness not to remember specific dates, this Impartial Hearing Officer allowed the witness to refresh his recollection over the ongoing, continuing objections from counsel for the District T570.
The incidents were as follows:
1. October, 2009 – an incident calling another boy “faggot” T570;
2. Another incident running up and down the bus aisle hitting students and cursing T576;
3. Yelling out school bus window at an adult, later identified as a parent, “suck my dick” T582;
4. A computer incident that was later labeled as unfounded where it was alleged that the student made inappropriate text comments to a female student T572.
The Father on cross stated that he never stated that charges 1-4 were not a manifestation of the Student's Disability, not even in Family court, T59. There was a series of questions concerning the Family Court interview much pertained to the charges of 1-4, in which the Father claimed he had told Family Court staff that the Student’s actions were a result of his It was also revealed that it was a boy the student called "Fagot", T601. Also the comment out the window was directed to a woman, T605. There was no reference to sexual obscenities in the Discipline reports were the Student was running up and down the bus, T605.
The District moved D2 the transcript from the Disciplinary Hearing as redacted and limited only to the testimony of , said transcript was admitted over the objection of the Parent's attorney T610. Also it was reported that the video of the bus incident could not be located after a search, T611.
The Parents rested their case.
The District called two (2) rebuttal witnesses.
The first rebuttal witness was ., the Principal of the School Building who reviewed the Student’s behaviors at incidents that the Father testified. The substance of which the incidents that led to the charges 1-4 are the sole sexually oriented acts or conduct. Nor were there other disciplinary reports involving the Student and , T623.
testified regarding the District's sexual harassment awareness program, T614 which is a video, T615, but it was unclear if the language was appropriate for children with T616.
The next rebuttal witness was , the District wide who is familiar with the Student and his behaviors T623. The gist of her testimony was drawing a distinction between the riggered incidents that comprised the charges 1-4.
The related behaviors contained an aggressive component in combination with a level of physical activity, T625. The bus window incident involved a parent, T627. stated the Student interacts differently with adults than with his peers, T627. In addition, the window incident did not involve face to face interaction, T628, nor did the alleged inappropriate computer communication with a female peer, T630. . stated that typically the Student when he engages in problematic behavior, he demonstrates an escalation in aggression and heightened level of physical activity, T633 meaning he is very active a body in motion, T633. The incidents, the student was not in control, there was no higher level of physical activity with charges 1-4. stated that the charges 5-8 that involved psychical altercation fits the past pattern of the Student with an escalating pattern of aggression paired with other behaviors, T634. . stated that with charges 1-4 there had been no pattern of aggression, no combination of behaviors, no heightened level of activity, T635. stated since they were a different class of behaviors they were not connected to the Student's disability, T636. . is not licensed to diagnosis or treatment of T636. was not on the bus nor viewed the video to determine if there was a heightened level of activity, but the bus driver not report that he had seen the incident, T638 and has been consistent in reporting problems on the bus, T639.
Subsequent to the close of testimony, there was a series of emails between counsel and this Impartial Hearing Officer commencing on Friday evening in which the attorney for the Parents notified this Impartial Hearing Officer and opposing counsel of their intentions to accept this Hearing Officer’s offer to recall Dr. . This was somewhat of a surprise to opposing counsel, who strongly objected. A review of this Impartial Hearing Officer’s notes was consistent with his recollection that the Parents rested without a reservation her acceptance to recall Dr. After a series of emails, it was resolved that a telephone conference would be held on March 11, 2011, at 9:45 a.m., to resolve the following issues: Burden of proof, that Dr. provide opposing counsel copies of her personal notes from the evaluation of the student. There has not been any additional contact with Dr. since she stepped down from the witness stand. Ultimately the Parents were allowed to have Dr. . testify over the objection of the School District counsel.
Dr. testified that students with interpret what are sexual actions through their own social lens T682, influenced by poor, emphatic, and theory of mind skills, making it extremely difficult to appreciate the perspective of others T682.
Dr. gave examples of verbally aggressive behaviors, because they have low theory, they have low feel at the moment without taking into consideration how someone else is experiencing it T683. The same things go for sexually tinged things that people say because they are not perceived how someone is perceiving those, and not able to make those kinds of social judgments T683, i.e.; student said something sexual to Sunday School teacher and to a classmate without due regard how those people may differently perceive it T683, impulsive thoughts and behaviors come out of mouths without due consideration T684. So when we add impulsivity problems, in addition to problems with appreciation as to what we say and do and how it is perceived by others. children often say inappropriate things but far from oblivious for a person having . Dr ’s general characteristics of is behaving or speaking in ways that are socially unacceptable because of genetic and neurologic factors T689, making students less able to appreciate anything socially subtle T685. They are socially ill astute, naïve, inappropriate because they lack experience in give and take of friendship making that most children have T689. They don’t spend a lot of time interacting socially and do not progress in their understanding of social nuances. They are at a neurologic and experiential disadvantage T689.
Dr. claims that the whole issue of sexuality is wound up in social, cultural bias. Many young teenagers say and do inappropriate things, but not to the level of children with deficits in social skill nuances and understanding. These children are in constant trouble because rejected by peers, and from adults who have expectations that are developmental in nature, adults expect things at different ages, but frequently kids with are not ready to do what adults expect in a difficult situation or sexual setting. T691. Also, a lot of clashes exist for and because they are not at certain level adults and authority figures expect they need to be at a certain age. T961. They are not capable of understanding what is demanded of them in social interactions and sexual interactions.
Dr. developed a and curriculum because it is a constant problem for clients with at various ages of their life. It is a common problem with kids with find themselves in trouble in beginning young teens and extends into adulthood T692.
Dr. compared a sexuality class for someone with needs to be more concrete because they are 3-4 years younger than their chronological age T693. They may understand that cognitively a sex act, but they are also blissfully unaware so they must use concrete steps and rules reinforced to allow them to generalize from classroom to reality where social interactions occur faster T694. For example, if you are processing what was said five (5) minutes, you were having problems listening now, is similar to what contend with T695. Yes, it is consistent with the student based upon the interviews with the student and the mother and father T696. The Student is a child who will do things in a desperate attempt to, make a friend, appear to be cool, be like somebody who you would want to befriend, but don’t know how to T696. The student would do anything that goes into his impulsive, little mind, in attempt to be accepted, or tolerated by peers (697). So whatever he does socially or sexually, is like year old trying to figure out what to do (697). The student has deficits that include lack of appropriate social experience, pragmatic language deficits (702), and deficits in the social use of language. The student has a lot of executive function problems, regulating social behavior, impulsivity that makes him inappropriate and aggressive, he feels threatened (673), fight or flight. Dr. opined that charges 1-4 are a manifestation of his and extension of previous aggressive behavior.
On cross Dr admitted that she did not refer the Student to the at the
Also Dr. would believe all socially maladjusted behavior of the Student is a result of his T718.
testified a second time as rebuttal witness. is the District-wide familiar with the Student in September, 2009, when he entered the Grade. She has interviewed all personnel interacting with the Student and she wrote the student’s BSP T730. Counsel for the Parents objected to . testimony, as a rebuttal of Dr. since they had different qualifications. .’s testimony was allowed based upon her qualifications, the appropriate weight to be allocated by this Impartial Hearing Officer.
reiterated her earlier testimony rebutting Dr. .’s, that it is quite significant that the Student has not exhibited sexually inappropriate conduct in other settings such as classroom, lunch, and hallways T731. disagreed with Dr. , that the Student’s acts were related to the Student’s disability because it was an isolated, impulsive act. Since it was not repeated in other settings, it was much less likely to be related to the Student’s disability T731. Dr. opined that the Student was developmentally, socially delayed, approximately to years. stated the Student was not acting at a younger, less socially developed age, since sexually oriented acts are not socially typical in elementary education buildings T734.
denied that the Student was removed from social skills groups T738. disagreed that the student was exhibiting signs of and disabilities T738. The witness did not see the Student several years behind peers, disagreed that one would see sexually oriented language and acts from delayed students T738. . disagreed that all aspects of the student’s behaviors are related to the disability.
has observed the Student engaging in misbehaviors typical of Middle School students, typical peer level inappropriate conduct, i.e.; heckling players on the other team in Gym, social actions matching those of peers. The Student does plenty of things consistent with same age peers, T743. has been involved in approximately fifteen (15) diagnosed students per year at the District, since she has been at the District, which she claims has an excellent reputation statewide for its programs.
On cross-examination, acknowledged that she did not see the bus incident, or video, or treat the student, nor is she a licensed Psychologist or licensed Behavioral Consultant.
PROCEDURAL ISSUES
Generally it is well recognized and well summarized in regarding students with a disability subject to disciplinary actions it is recognized that as stated in SRO 04-053:
“The IDEA, New York Education Law and their implementing regulations provide specific procedural protections for children with disabilities who are subject to discipline (20 U.S.C. § 1415[k]; N.Y. Educ. Law § 4404[4][b]; 34 C.F.R. §§ 300.519-300.529; 8 NYCRR Part 201). New York requires that the CSE shall conduct a review of the relationship between the student's disability and the behavior subject to disciplinary action immediately, if possible, but in no case later than ten school days after a decision is made by a superintendent of schools to change the placement of a student to an IAES
(8 NYCRR 201.4[a][1]; Application of the Bd. of Educ., Appeal No. 03-075). State regulation requires that not later than ten business days after imposing a suspension or removal that constitutes a disciplinary change in placement, including a change in placement to an IAES the CSE must convene to develop a functional behavioral assessment and implement a behavioral intervention plan (8 NYCRR 201.3[a][1]). State regulation further sets forth the conduct of review to be completed by the CSE before making a manifestation determination, which is analogous to its federal counterpart (8 NYCRR 201.4[c]; see 34 C.F.R. § 300.523[c]).
Pursuant to the Commissioner’s Regulation 201.4( c ):
” A review of the relationship between the student's disability and the behavior subject to disciplinary action to determine if the conduct is a manifestation of the disability must be made immediately, if possible, but in no case later than 10 school days after: (3) a decision is made by a board of education, district superintendent of schools, building principal or superintendent pursuant to section 201.7(a) or (b) of this Part to impose a suspension that constitutes a disciplinary change in placement.”
On January 26, 2011, the principal imposed a five (5) day suspension pending the Superintendents hearing. By means of an original invitation dated January 26, 2011 the Parents were advised of the procedural process of a Formal Superintendent’s Disciplinary Hearing by a Superintendents Disciplinary Hearing Officer, Manifestation Team Meeting and reconvening of the Superintendent Disciplinary Hearing for a possible penalty phase. At the request of the Parents, the meeting was rescheduled by means of an invitation D-5 dated January 31, 2011 for February 3, 2011. The Hearing Officer issued 22 findings and found the Student guilty on Charges 1-8 and the matter was referred to the Manifestation Determination Team, if the Manifestation team does not find a Manifestation then the matter is referred to the Superintendents hearing for the penalty phase.
I find that the Manifestation Determination Team was made in a timely fashion within ten (10) school days pursuant to 201.4 ( a ).
There is no dispute that about the composition of the Manifestation Determination Team and based upon a review D-3 the Committee Summary Information, and that the Parents had a proper notice of the hearings and meetings D-4, D-5.
I find that the District complied with 201.4 (b).
The conduct of the Manifestation Determination Team is subject to 201.4 (c), which states in relevant part:
“(c) Conduct of review. The manifestation team shall review all relevant information in the student’s file including the student’s IEP, any teacher observations, and any relevant information provided by the parents to determine if:(1) the conduct in question was caused by or had a direct and substantial relationship to the student’s disability; or (2) the conduct in question was the direct result of the school district’s failure to implement the IEP.”
The Manifestation Determination Team must consider all relevant information pertaining to the behavior subject to the disciplinary action including all relevant information in the Student’s file. D-6 was the Manifestation packet provided to the Manifestation team. The packet contained the following: IEP dated November 16, 2011, the Student’s Schedule, January 2011 FBA, 2010-2011 report card for the first quarter, C.U. Evaluation dated 5-28-2009, and the Behavior Detail Report listing incidents on January 20, 2011 and 24, 2011.
The Parents disputed that the Manifestation Determination Team packet included all relevant document since it did not include the entire Disciplinary record of the Student or all C.U. reports. Although it is not disputed that the Parents were provided an opportunity to supply documents or individuals they believed to be relevant. What is unclear whether the Parents were provided in advance of the meeting what documents were being provided to the Manifestation Team by the District, nonetheless it is clear that the Parents did not avail themselves of the opportunity pursuant to 201.4 to submit or provide information or individuals. However, in light of the background, training, work experience of the Father, I find that the District complied with 201.4 (c).
Regarding the other factors, there was no dispute that there were observations of the Student by . were considered by the Manifestation Determination Team by and the transcript from portraying ‘s observations of the Student. There is also no dispute that the Manifestation Team determined that the conduct in question was not caused by nor had a direct and substantial relationship to the Student’s disability. In addition, there was no dispute that the team members stated that the Student’s IEP was being implemented.
At issue in this expedited impartial hearing is the determination by the Manifestation Determination Team that Charges 1-4 were not a nexus or manifestation of the Student’s Disability who is classified as and diagnosed with The attorney for the Parents raised an issue regarding the scope of the Hearing which in the opinion of counsel should include a review of the implementation of the IEP. This IHO ruled that said issue could not be raised in an expedited format since the issue of implementation of the IEP would only be relevant if there was a finding of a nexus. Without a finding of nexus the failure to implement provisions of the IEP would not have a bearing on the Student’s conduct that was subject to review. Additionally a review of 201.11 does not list implementation of the IEP as a listed circumstance for an expedited hearing. The Parents could either bifurcate this proceeding based upon the current Due Process Hearing Request or file an additional hearing request. The Parents did not request that this expedited hearing be bifurcated into an expedited and a non expedited phase. It should be noted however the Parents complied with this ruling for the purposes of this hearing; however they did not waive this issue nor their right to seek further review of this ruling.
Another contested procedural issue was which party had the burden of proof. The District in its opening remarks claimed that the Parents had the burden of proof based upon Schaffer vs. Weast. The Parents countered that the District has the burden pursuant to Education Law Section 4404(1) ( c ) of the Education Law which states in part:
"The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing, except that a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement." This IHO found that the District had the Burden of Proof.
The standard of review to be utilized by this IHO for purposes of this hearing is as follows: The District has the burden to prove that the Student’s conduct as detailed in Charges 1- 4 are not a manifestation of his disability and that the Student’s conduct was not caused by a direct result or have a direct and substantial relationships to the child’s disability which is identified as a and disorder.
A component of this issue is whether the review by this IHO is a de novo review of the evidence or is it a review of the MDT determination. I find that a review of the Determination if the MDT is only relevant to determine if the MDT utilized the appropriate conduct at the MDT meeting namely “(c) Conduct of review. The manifestation team shall review all relevant information in the Student’s file including the Student’s IEP, any teacher observations, and any relevant information provided by the parents to determine…” Otherwise it would severely limit the opportunity of the Parents to conduct an impartial hearing to review the MDT determination.
The result would be to turn the MDT into a mini hearing and adversarial proceeding and not a District review of the Student’s conduct. However having made that finding this IHO acknowledges that the information reviewed by the MDT is consistent with the proof and evidence produced during this Impartial Hearing.
The District argues the information before the MDT clearly supported its decision. This IHO has previously ruled that this impartial hearing is not a review of the determination of the MDT, except as required to review the conduct of the MDT as by the Commissioner's Regulations. The MDT participants including ., the School Psychologist, which the Student’s IEP was being providing as a related service, and the Student was receiving his Resource Room Services. The MDT determined that the Student's IEP was implemented. All participants of the MDT were familiar with the Student and they reviewed the C.U. report. The Parents did not provide any reports and did not provide any information at the MDT.
I find that the MDT properly reviewed the relevant information, evaluations, discipline reports and teacher reports.
DID THE DISTRICT MEETS ITS BURDEN TO PROVE THAT THE
STUDENT’S CONDUCT AS DETAILED IN CHARGES 1-4 ARE NOT A MANIFESTATION
OF HIS DISABILITY AND THAT THE STUDENT’S CONDUCT WAS NOT CAUSED BY A
DIRECT RESULT OR HAVE A DIRECT AND SUBSTANTIAL RELATIONSHIPS TO THE
CHILD’S DISABILITY WHICH IS IDENTIFIED AS A AND
DISORDER.
The District argues the Student's Misconduct in charges 1-4 were not caused by or directly and substantially related to the Student's disability. The District argues that the following: the Parents did not express concerns about inappropriate sexual behaviors, the Student was not angry or enraged, or in a heightened emotional state. The bus driver did not see any heightened activities of the Student. There was no indication that the Student was threatened or uncomfortable with ., the C.U. report was silent regarding issues with sexuality. The Student does have peer relations, does not struggle with social reciprocity, does not act awkward in social situations, struggles with authority figures, has poor eye contact, and withdraws from adults.
The Parents criticized the District witnesses as follows: the building principle did not see the incident, nor was he qualified to testified about related behaviors but nonetheless he led the team with his views of no nexus. had no personal knowledge of the incident, has a degree in psychology and is certified in administration but without any expertise in the school psychologist also did not see the incident has a psychologist degree and certification but no expertise in the behavioral consultant, has fewer credentials than any of the prior witnesses.
does however has had greater contact with the Student than either of the Parents' Dr.
or Dr. by virtue of being the Student's provider. Although less credentialed has the greatest familiarity of the Student’s behaviors. I find that the above witnesses, as did all witnesses, gave credible although conflicting testimony based upon their beliefs, backgrounds, perspective and familiarity with the Student.
The Parents rely upon the expertise of Dr. a foremost expert in the area of disabilities including Syndrome. The Parents reference Dr. s testimony that the Student's conduct that led to charges 1-4 are a continuation of types of behaviors that were seen at an earlier age; it is just now they have a sexual nuance to them that brings to them greater attention but still is similar when look at an inability to control emotional expression, inability to understand social situations, inability to form relationships in age appropriate ways or understand social cues, this kind of situation occurs frequently with children with but the specific conduct of grabbing a another gender’s breast is not. As children with reach the teen years these children are years behind their peers and don't know how to appropriately express themselves. There are two factors factors and factors. These problems are so common place that Dr. developed a curriculum and groups. The reason being is because in an unstructured setting social conversation requires lightening fast reflexes about what is happening in moment. Also Dr relied upon the C.U. 2009 report citing lack of appropriate social skills, pragmatic language deficits, significant deficits in executive functioning, general behavioral difficulties regulating himself and impulsivity.
The District is critical of Dr. s testimony which was mostly generalizations concerning children with and very little firsthand knowledge of the Student. The District cites multiple cases and SRO decisions regarding the weight to be placed upon expert testimony. The District also is critical of Dr. 's reliance upon two year old evaluations, failure to observe the Student in a school setting and only in the home of the Parent. Also there was some concern regarding the Student shutting down assuming the fetal position during the evaluation skewed the C.U. evaluation. Dr. testified that all of the Student's socially maladjusted behavior would be a manifestation of The does not reference any sexually related conditions. Dr. s reliance upon the lack of impulsivity control is misplaced since the sexual misbehaviors were premeditated and deliberate. Dr. s description of children as socially delayed does not make sense in a school setting comparing the Student acts to a year old, since year olds do not engage in sexually inappropriate behaviors. The Student does have positive peer interaction, and Dr. . did not refer the Student to the
The District was critical of the Father's testimony for a variety of reasons, including disingenuous, circumventing the 5 day rule. Nonetheless his testimony was allowed, was credible, and did highlight important elements of the Student's past behaviors. The Student's name calling i.e. fagot. The Student's possible inappropriate interaction with a female peer on the internet. Sexually tinged comments yelled out a school bus at a female adult. I find that the Father's testimony was credible.
The Parents argue that based upon the testimony of the Father there exists a pattern of similar incidents escalating in levels of aggressive behavior to counter the District's argument and to show that the bus incident and charges 1-4 were not an isolated incident, nor was it only in one domain or setting but in a variety of settings and domains.
The District contends that the Student’s misconduct in charges 1-4 was premeditated deliberate, escalating and not symptomatic of misconduct of a child with The Student started with verbal insults, escalating to attempting to grab breast and finally succeeding. District witnesses indicated it is unusual for children with to encourage other students to engage in inappropriate behaviors. The Student was able to understand “yes, no, and stop”. The Student denied the incident which is not typical with children. They have never seen this conduct from the Student.
The Parents contend that the District uses false reasoning. Understanding the meaning of “yes and no and stop” does not mean the Student's conduct was not related to his disability. Dr. testified that children often know intellectually in office setting but in a social setting they have difficulty behaving in a socially appropriate manner because of deficits in pragmatic language which is the social use of language and have trouble generalizing in real time and with real people. The Parents rely on the C.U. testing and reports which indicates that the Student has significant weakness and scored in the percentile in drawing from formal or informal educational opportunities which assess general principles and social situations.
The record is clear that the Student has deficits in pragmatic language. Also the record is clear that the Student has deficits in applying from a general situation across and into different settings. I find that understanding “yes, no, and stop” does not support a finding of a lack of nexus.
Also the Parents dispute that the conduct has not been observed across various settings. The record is clear that the Student had an incident yelling out the bus window at a female adult. The record is clear that the Student engaged in name calling i e faggot to another boy. The internet communication with a female peer was not confirmed or felt to be reliable enough to punish the Student.
The question remains however if the conduct that lead to charges 1-4 can be distinguished or are different from prior incidents. I find that they are. The incidents herein which precede the conduct with . fall into the category of impulsive verbal outbursts. The incidents with are different in two respects: One, they were directed towards the same target; and secondly, they occurred over a period of time. These two factors are a critical difference, and I so find the repeated conduct towards are distinguishable from the prior incidents and that repeated inappropriate conduct towards the same individual was not seen in other domains or settings.
The Student denying the incident does not support a finding of no nexus since the Student has exhibited denial behaviors before. The District is correct and I find that the Student has not exhibited theses exact behaviors.
Furthermore the lack of reference to sexual conduct in is not controlling. It is a diagnostic criterion for diagnosing individuals. However what may be relevant is the frequency that this conduct occurs amongst individuals in an attempt make the leap from inappropriate social behaviors and inappropriate sexual touching.
DECISION
It is the District’s position, as supported by the District witnesses that the Student’s classification is not in dispute. The Student is classified as with a diagnosis of and The Student’s past identified conduct and behaviors with his condition are consistent. The past behaviors and the behaviors that led to charges 5-8 deal with physical altercations with male peers in the form of a head lock, and disobeying the directions of an administrator and teacher to stop physical altercations and behaviors. The District’s witnesses consistently stated that the Student’s sexually oriented comments and conduct were never seen before. The Student was reported to have yelled out of a bus window to a female parent, “Suck my dick.” The District has distinguished this conduct as being interpersonal, not face to face, and a distance apart. There was a previous incident where the Student called a boy classmate a “faggot”. This was distinguished by the District as different from the behaviors associated with charges 1-4, and directed at , a female peer in that they were sexual in nature. The charges 1-4 include using vulgar, obscene language, name calling, i.e.; “slut”, “whore”, “slut train”. Another important distinction the District has drawn is that charges at 1-4 occurred and were directed at a particular female student and was not an isolated or random event since such conduct could not take place in other areas or venues during the school day. The Student interacted appropriately during lunch at the lunch table, sitting with boys and girls. The Student interacted appropriately for the most part in the class, hallways, and gym class. The District witnesses referenced an incident that occurred in gym class where the Student acted inappropriately heckling students on the opposing team, but said conduct was consistent with typically acting peers. The District witnesses earlier distinguished the incident occurring with . and other behaviors based upon the observations, that when in the past the Student would exhibit heightened levels of activity leading to difficulties by the Student to control his conduct and behavior. The District distinguished the Student’s behaviors towards . in that there were no observed heightened levels of activity based upon their investigation that the bus driver did not observe the incident. The inference being that if the Student was involved in heightened levels of activity, it would draw notice to the Student and his conduct and the bus driver would observe said heightened levels of activity and report behaviors to the office or administrators as he had done in the past. Upon a review of the transcript of the female student, there is no reference to the Student acting with a heightened level of activity. The female student, , initially ignored the comments from the Student, slapped his hand and told him no, when he attempted to and did succeed in touching her breast, and resorted to wearing her backpack to prevent further physical touching by the Student. The District interpreted the Student’s behaviors as willful and deliberate, planned in a venue so as to avoid being detected. The District repeatedly has indicated that the Student understood “no”, “stop”, and a situation involving the head lock of the male peer, and the Student was unable to stop due to the heightened level of activity. The District witnesses also stated that the District witnesses were the most familiar with the Student and observed the Student in school with his peers in structured and unstructured settings, and as a result, were familiar with his triggered behaviors.
The Parents countered the testimony of the Father, reviewing the Student’s disciplinary behaviors and incidents to rebut the District’s position that the bus incident with was an isolated incident. The Father relied upon the Student yelling out the window at a female parent and a computer incident wherein it was alleged the Student sent sexually inappropriate messages by computer. In addition, the Father portrayed the Student’s physical altercations as consistent with his classification and diagnosis in that the incident with . was an extension of those past behaviors since they involved inappropriate, physical contact. The Parents relied upon the testimony of Dr. ., a well known expert in children and adults with to establish that the Student’s interaction with on the bus was a manifestation and nexus with the Student’s disability.
Dr. who’s familiarity with the Student included a review of reports from C.U., attending a CSE meeting, and interview with the Student and Parents for approximately 45 minutes each. Dr. spoke about the Student’s impulsivity in that the physical touching on the bus was consistent with and was consistent with the Student’s past physical aggressions. Dr. spoke to the general overall condition of s in that how it generally and with the Student in particular, is a developmental disorder in which the Student has delays in social interaction, delays in pragmatic speech, resulting in difficulties in responding appropriately and interacting with others. Dr. attempted to make the leap between a Student and his being a socially, developmentally delayed by approximately or years when compared to his typically developing peers. What was left unanswered is a student developmentally delayed, appears to be interacting with at a more advanced level than his chronological age, and not at a lesser or delayed reduced social level for a child with the .
The Parents were critical of the group the Student was receiving which the District claimed established boundaries of appropriate conduct between the Student and peers. The Parents were also critical of the District’s sexual harassment program, and whether it was at a level the Student would understand. It was interesting to note the Student was described cognitively functioning at or levels. It is conceded that the Student had delays in pragmatic speech, however the presentation in a sexual harassment awareness program was by video, indicating a verbal and visual component.
It is also interesting to note that the Student was attending a sexual awareness program at the It was unclear whether it was Family Court ordered, or voluntarily from the Parents, however, the Parents chose not to call as a witness, the who has dealt with the Student on a face to face basis, dealing with this specific topic. Instead, the Parents attempted to supplement Dr. ’s explanation of an condition with Dr. who was to speak regarding the Student’s sexually oriented behaviors Dr. .’s testimony was ruled to be repetitive based upon the fact that both he and Dr. were the evaluators and not providers, that Dr. . interned at the and by virtue of that internship, incorporated the thoughts and approach of Dr. , and finally, Dr. spoke with Dr. prior to evaluating the Student thereby incorporating Dr. ’s thoughts concerning the Student and thereby impacting Dr. ’s evaluation. It should be interesting to note, that when Dr. was allowed to be recalled to ensure that there were no gaps in her initial direct testimony. There appears to be an inconsistency regarding the frequency of sexually oriented comments and behaviors among children and adults. Initially, Dr. indicated such behaviors were not frequent, and subsequently Dr. indicated that such conduct was frequent with the children with i.e. 18 year olds acting like 14 year olds, beginning at young teens and carrying over to adult hood. As a result it would appear that Dr. was referencing a group older than the Student and not in the Student’s age group. Additionally there were inconsistencies at one point Dr. indicated that all behaviors were affected by the condition and at another point indicated that it would be difficult to answer if extreme behaviors i.e. forcing one upon another were relate to the condition. Overall Dr. ’s testimony was filled with generalities regarding the how the affects individuals and what specific conduct was related to the
As was stated by the District witness it was a big leap from socially inappropriate behaviors to sexual misconduct. I find that the Parents were not able to bridge gap. The record shows that there was no evidence of heighten levels of activity. The conduct is not typical age appropriate misconduct; so it cannot fall into the realm of delayed developmentally inappropriate social conduct that is the result of delayed development of social skills. Dr. . says teens have this problem, but the Student is not a teen yet. Nor is this a situation in the realm of lighting fast reflexes since was it was repeated conduct. Also Dr. indicated it is difficult to say if extreme sexual misconduct is related to . The District choruses of witnesses all are of the belief that the Student’s misconduct in charges 1-4 is not manifestation of . As to the Student’s Dr. herself said disorder comes and goes, and the district witnesses have not observed from the Student.
I find that Dr. statement that children with inability to understand social situations does not explain the Student’s repeated misconduct towards .. Dr responded that the conduct to f 1-4 frequently occurs in children with but not the specific conduct. The attempt by Dr. to bridge the gaps and make the leap from inappropriate behaviors to sexual misconduct is tenuous at best. Nor does Dr. ’s statement that Children with have an inability to form relationships in age appropriate ways because the Student’s conduct was not at a socially delayed level. Nor does a failure to understand social cues since there was nothing subtle in the Student’s conduct and based upon the record there was no indication that there was any conduct on behalf of ., her female friend or anyone on the bus that the Student failed to understand. Nor is there any proof that this type of sexual misconduct occurred on the bus frequently enough so that the Student’s observations would lead to his confusion as to what was inappropriate. It is true, as Dr. . stated that the Student’s conduct now have a sexual nuance to them that brings to them greater attention but still is similar when look at an inability to control emotional expression. In addition, there is no proof or testimony regarding the motivation behind the sexual misconduct and if it was a result, albeit inappropriate, to engage emotional expression. The record would indicate the opposite that there was a lack of external emotions. The district’s witnesses stated that the Student would become enraged and not able to control himself. Also there was a lack of physical indicators. The District witnesses indicated that there was no heightened state of activity exhibited by the Student. The Student’s elated behaviors would be exhibited in conjunction with a heightened level of activity. Nor was there any proof that the Student was physically mature beyond his chronological age.
I find for the reasons stated herein the Student’s conduct as detailed in Charges 1-4 are not a manifestation of his disability and that the Student’s conduct was not caused by a direct result or have a direct and substantial relationships to the child’s disability which is identified as a and disorder.
FINDINGS
1 I find that the District complied with 201.4 (b). 2 I find that the District complied with 201.4 (c). 3 I find that a review of the Determination if the MDT is only relevant to determine if the MDT utilized the appropriate conduct at the MDT meeting namely “(c) Conduct of review 4 I find this IHO acknowledges that the information reviewed by the MDT is consistent with the proof and evidence produced during this Impartial Hearing. 5 I find that the MDT properly reviewed the relevant information, evaluations, discipline reports and teacher reports 6 I find that all witnesses gave credible although conflicting testimony based upon their beliefs, backgrounds, perspective and familiarity with the Student. 7 I find that understanding yes, no, and stop does not support a finding of a lack of nexus. 8 I find that the incidents herein which precede the conduct with fall into the category of impulsive verbal outbursts. The incidents with are different in two respects: One, they were directed towards the same target; and secondly, they occurred over a period of time. These two factors are a critical difference, and I so find the repeated conduct towards . are distinguishable from the prior incidents and that repeated inappropriate conduct towards the same individual was not seen in other domains or settings. 9 I find the Student’s denial of the incident does not support a finding of no nexus since the Student has exhibited denial behaviors before. 10 I find that the Student has not previously exhibited theses exact behaviors. 11 In find it was a big leap from socially inappropriate behaviors to sexual misconduct. 12 I find that the Parents were not able to bridge gap. The record shows that there was no evidence of heighten levels of activity. The conduct is not typical age appropriate misconduct; so it cannot fall into the realm of delayed developmental social interaction that is the result of delayed development of social skills. Dr. . says teens have this problem, but the Student is not a teen yet. Nor is this a situation in realm of lightning fast reflexes since was it was repeated conduct. Also Dr. indicated it is difficult to say if extreme sexual misconduct is related to The District choruses of witnesses all are of the belief that the Student’s misconduct in charges 1-4 is not manifestation of . As to the Student’s Dr. herself said disorder comes and goes, and the district witnesses have not observed from the Student. 13 I find that Dr. statement that children with inability to understand social situations does not explain does not explain the Student’s repeated misconduct towards .. Nor does Dr. ’s statement that Children with have an inability to form relationships in age appropriate ways because the Student’s conduct was not at a socially delayed level. Nor does a failure to understand social cues since there was nothing subtle in the Student’s conduct and based upon the record there was no indication that there was any conduct on behalf of ., her female friend or any one on the bus that the Student failed to understand. It is true, as Dr.
stated that the Student’s conduct now have a sexual nuance to them that brings to them greater attention but still is similar when look at an inability to control emotional expression. However the district’s witnesses stated that the student would become enraged and not able to control himself. Also ether was heightened state of activity exhibited by the student. The Student’s related behaviors would be exhibited in conjunction with a heightened level of activity. 14 I find for the reasons stated herein the Student’s conduct as detailed in Charges 1-4 are not a manifestation of his disability and that the Student’s conduct was not caused by a direct result or have a direct and substantial relationships to the child’s disability which is identified as a and disorder.
PLEASE TAKE NOTICE:
Any party aggrieved by the findings of fact and the decisions of an impartial hearing officer rendered in accordance with subdivision (I) of section 200.5 may be obtained by either the parent or the board of education by an appeal to a State review officer of the State Education Department. Such a review shall be initiated and conducted in accordance with provisions of parts 279 of this title. Section 279.2 states:
“ 279. (2)(b).13 Notice of intention to seek review.
(a) The parent or person in parental relationship of a student with a disability who intends to seek review by a State Review Officer of the State Education Department of the decision of an impartial hearing officer shall serve upon the school district, in the manner prescribed for the service of a petition pursuant to section 275.8(a) of this Title, a notice of intention to seek review in the following form:
Notice:
(a) The undersigned intends to seek review of the determination of the impartial hearing officer concerning the identification, evaluation, program or placement of (name of student with a disability). Upon receipt of this notice, you are required to have prepared a written transcript of the proceedings before the impartial hearing officer in this matter. A copy of the decision of the impartial hearing officer, a bound copy of the written transcript, including a word index for the written transcript, as well as an electronic transcript, and the original Exhibits accepted into evidence at the hearing and an index to the exhibits must be filed by the Board of Education with the Office of State Review of the New York State Education Department within 10 days after service of this notice.
(b) The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and within 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.
( c ) A notice of intention to seek review shall not be required when the board of education initiates an appeal from an impartial hearing officer's decision. A copy of the board's notice of petition, petition, memorandum of law and any additional documentary evidence shall be served upon the parent within 35 days from the date of the impartial hearing officer's decision. If the decision has been served by mail upon the board, the date of mailing and the four days subsequent thereto shall be excluded in computing the 35-day period.”
Dated: May 4, 2011
O, ESQ.
IMPARTIAL HEARING OFFICER