NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
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In the Matter of the Appeal of *
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On Behalf Of *
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The TTT Union Free School District *
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HEARING OFFICER’S FINDINGS OF FACT AND DECISION
IN THE ABOVE CAPTIONED MATTER
May 11, 2011
DATES HEARING WERE HELD
All of the following Hearings were held in 2010: June 29, July 15, August 17, August 23, September 29, October 12, October 13, October 20, October 22, October 27, November 9, November 10, November 30, December 7, December 16, All of the following Hearings were held in 2011: January 10, January 14, February 7, February 11, February 28, March 4, March 9, March 11, March 14, March 22, March 25, April 5, April 19 .
INDIVIDUALS WHO APPEARED AT THE HEARINGS
For the Parents:
Name Title
i Parent
Representing the Parents: Mr. and Nes [iiepresented themselves.
For the District:
The following witnesses are all employees of the EEE Union Free School District: Assistant Superintendent of Pupil Personnel Services, Testing, and Research
High School Science Teacher
School Psychologist
High School Special Education Teacher
High School Business Education Teacher
High School Special Education Teacher Ms. po Director of Secondary Special Education Ms. P| High School Math Teacher The following witness is not an employee of the ee SD Ms. Pe Director and Consultant, Representing the School District: The District was represented by Mr. P| Esq, of ee.
WRITTEN EVIDENCE SUBMITTED
Impartial Hearing Officer Exhibits:
1. “Amended Due Process Complaint Notice to Amended Complaint Dated July 8, 2010, Currently Being Heard by Impartial Hearing Officer Dr. JP dated
August 24, 2010, 7 pages
2. “District’s Response to the Second Amended Due Process Complaint” dated September 8, 2010, 121 pages
For the Parents:
1. CSE Invitation Letter and Education Evaluation dated April 29, 2010, 8 pages
2. Letter to Parents from EE dated May 25, 2010, one page
3. Letter to Parents from EE cae: May 21, 2010, 2 pages
4. Audiotape of CSE Meeting of June 1, 2010
5. Audiotape of Viewing of Video Clips, June 15, 2010
6. Audiotape of Witness Interview at High School
7. Audiotape of CSE Manifestation Meeting June 24, 2010
8. Audiotape of CSE Meeting, February 12, 2010
9. BE = valuation by Dr. GE cated June 27, 2005, 2 pages
10. Student Observation of Student by Ms. Bac October 5, 2009, 2 pages
11. Interim Progress Report dated October 15, 2010, one page
12. 2009-2010 School year 3 Quarter Progress Report and Report Card, 3 pages
13. 2010-2011 School Year 1“ Qtr. Report Card
14. Monthly Report from Mrs pages
15. No Exhibit
16. Student Transcript from Ms. {§§fs File Covering School Years 2007-08, 2008-
09, 2009-10, 2010-11, one page
17. Not in Evidence
18. Not in Evidence
19, Grade Book
20. 2TM4 Quarter English 2" Quarter Report Card
21. Letter to Ms. r dated January 9, 2010
22. Not in Evidence
23. English Regents, January 26, 2010, Part 1, 7 pages
24. English Regents, January 27, 2010, Part 2, 9 pages
25. No Exhibit
26, General Education/Special Education Teacher Report dated April 26, 2010, 6
pages
27. Student Reports, 11" Grade, 12 pages
28. No Exhibit
29. No Exhibit
30. District-Wide School Safety Plan, 13 pages
31. Appeal to BOE to Expunge NE Student Suspension, dated April 15
2010, 19 pages
32. Letter from Parents to Mr. ates February 9, 2010, one page
33. Letter from Ms. a. Parents dated February 24, 2010, 2 pages
34, No Exhibit
35. File from NYS Office of 2c 9/28/2010, 12 pages
36. Letter to Parent from Department of Social Services dated May 21, 2010, 4 pages
37, Letter from Parents to Department of Social Services dated June 3, 2010, 18
pages
38. Letter from a: Parent, dated July 30, 2010, 2 pages
39. Application/Course Dates/Report Card for Regents Review Course and Exam
Summer 2010
40. Drivers Education Acceptance/Course Dates and Completion Certificate, Summer
2010
41. Letter to Parents from Summer School Principal dated August 17
2010, one page
42. No Exhibit
43. Letter to BOCES from Parent dated September 17, 2010, one page
44, Letter to Parent from BOCES dated September 20, 2010, 15 pages
45. Letter to Parent BOCES, dated September 27, 2010, one page
46. Letter to Parent and Superintendent
dated September 28, 2010
47. Letter to Parent and Superintendent dated July 12, 2010, 6 pages
48. Letter from VESID dated October 25, 2010
49. Letter from VESID to Parent and Superintendent dated June 8, 2010, 5 pages
50. Letter from VESID to Parent and Superintendent dated November 16, 2010, 5
pages
51. Letter to Ms. [from parents dated February 10, 2010, 3 pages
52. Letter to Ms. Bio Parents dated May 8, 2010
53. CSE Invitation Letter dated March 31, 2010, 2 pages
54. Letter from Ms. | ig Parents with IEP dated April 6, 2010, 4 pages
55. E-mail from Ms.to Ms. I dated June 23, 2010
56. Letter to Ms MM dated May 11, 2010
57. Letter to Ms. GE dated July 22, 2010
58. Letter to Ms. MM dated August 17, 2010, 2 pages
59. Letter to Ms. GE cated September 17, 2010
60. Letter to Ms. GE cated September 23, 2010, one page
61. Letter to Ms. JM dated September 25, 2010, 2 pages
62. No Exhibit
63. No Exhibit
64. No Exhibit
65. No Exhibit
66. Student Discipline Rules 2009-2010 School Year and sign School Floor
Plan, 2 pages
67. E-mail from Dr RR ated June 1, 2010, one page
68. Letter from Dr. a: dated June 10, 2010, 2 pages
69. RE§ 0 tice dated June 12, 2010, one page
70. E-mail from Parent to District Personnel dated June 8, 2010, one page
71. Letter to Dr. Ron Parents dated June 12, 2010, one page
72. Photographs of Student on June 8, 2010
73. Letter to Parents from Mr. RE dated November 4, 2010, 2 pages
74. E-mail between Dr. Pe: Parent
75. E-mail from Parent to High School Staff dated June 14, 2010, one page
76. Letter from Dr. EE acc December 232, 2009, one page
77. E-mails between Parent and Superintendent dated September 21-24, 2010
78. E-mails between Parent and Ms. Jl
79. E-mail between Parent and Ms. | | on October 15-18, 2010 and November 5
2010
80. No Exhibit
81. Suspension Notice dated December 10, 2010
82. Emergency Room Report dated June 6, 2010
83. No Exhibit
84. Manifestation CD dated 1/4/10
85. Student’s English Test May 5, 2010
86. Student’s Write-up for Incident
87. Police Incident Report
88. Video Clip of May 5, 2010 Incident
89. Request for Services from dated March 1, 2010, 2 pages
90. Ms. BE contact Log dated March 1, 2010 to June 30, 2010, 4 pages
91. Ms EE Consultation Notes from March 1, 2010 to June 30, 2010, 28 pages
Entered for ID Only
92. BASC-2 Teacher Rating Scale Completed by Ms. ated March 23, 1020,2
pages
93. Motivation Assessment Scale undated, 2 pages
94. Teacher Rating Scales Report as a Result of Input of Exhibits 92 and 93 dated
March 24, 2010, 20 pages
95. Fax from Ms Ms. dated March 30,2010,13 pages
96. No Exhibit
97. Notes from Ms. GE filedated February 22, 2010 to June 14, 2010, 4 pages
98. Stipulation of Agreement between Parents and District dated June 28, 2005, 26
pages
99. Commissioner’s Decision dated EEE 9 pages
100. Notice of Claim of Parents to District dated May 3, 2010, 2 pages
101. Letter from Parents to District dated June 8, 2010, one page
102. E-mail from Parent to Ms. GE cated June 9, 2010, one page
103. E-mail from Parent to District dated June 10, 2010, one page
104. E-mail from Parent to District dated June 11, 2010, one page
105. E-mail from Parent to District dated June 11, 2010, 2 pages
106. E-mail from Parent to District dated June 10, 2010, one page
107. Letter from Ms. RE to Parents dated June 10, 2010, one page
108. Timelines and Convenience of Hearings and Review Statement, one page
109. Findings of Fact, Conclusions of Law and Order by TR iz:
December 23, 2018, 39 pages
110. valuation by Dr Gated June, 23, 2006, 4 pages
111. Letter to Parents from SEQUA dated Jul6 31, 2009, 5 pages
112. Letter to Parents from Ms. [dated January 13, 2009, 2 pages
113, Letter from Ms. | Mr. date September 4, 2009, 3 pages
114. Letter to Parents and Ms. Pe from Ms dated January 12, 2010
3 pages
115. Letter to Parents and Ms. [from Ms. BE dated February 22, 2010
one page
116. E-mails from > ie and from District Staff dated June 2009
one page
117, E-mail from Parent to District Staff dated June 8, 2010, one page
118. E-mail from Parent to District Staff dated June 8, 2010, one page
119. E-mails from Dr RR enc District Staff dated June 2010, one page
120. E-mails Re: Dr. Pated June 9, 2010, 4 pages
121. E-mails Re: Dr. Fe letter of June 10, 2010, 4 pages
122. E-mails from Ms. and Mr. SM dated June 10, 2010, 2 pages
123. Operation and Maintenance Manual for Closed Circuit Television in
District High School, 12 pages
The parents also submitted a 34-page brief.
For the District:
Mr. BRR vomited the following exhibits:
1. IEP 2010-2011 dated 6/24/10, 11 pages
2. IEP 2010-2011 dated 6/1/10, 8 pages
_ IEP 2009-2010 dated 5/13/10, 10 pages . IEP 2009-2010 dated 2/12/10, 9 pages
TEP 2009-2010 dated 1/15/10, 10 pages
IEP 2009-2010 dated 1/4/10, 9 pages
IEP 2009-2010 dated 12/22/09, 12 pages
IEP 2009-2010 dated 10/30/09, 12 pages
TEP 2009-2010 dated 10/22/09, 11 pages
10. IEP 2009-2010, with attached Committee Information and Attendance sheet and signed Waiver of Parent Member, 12 pages
11. TEP 2008-2009 dated 3/13/09, 11 pages
12. IEP Amendment Agreement and Consent Form dated 2/17/09, one page
13. IEP 2008-2009 dated 2/2/09, 11 pages
14. Amended Due Process Complaint Notice dated 7/8/10, 3 pages
15. Letter from Jo Mr. WM iated 6/15/10, one page
16. Due Process Complaint dated 6/11/10, 3 pages
17. Amended Due Process Complaint Notice dated 6/11/10, 3 pages
18. Due Process Complaint dated 5/18/10, 3 pages
19, Due Process Complaint dated 5/13/10, 3 pages
20. Revised Due Process Complaint Notice dated 1/11/10, 3 pages
21. Due Process Complaint Notice dated 1/6/10, 6 pages
22. Due Process Complaint Notice dated 12/2/09, 4 pages
23. Due Process Complaint Notice dated 11/6/09, 6 pages
24. Due Process Complaint Notice dated 11/6/09, 5 pages
25. Due Process Complaint Notice dated 9/15/09, 7 pages
26, Due Process Complaint Notice dated 9/3/09, 4 pages
27, Due Process Complaint Notice dated 8/31/09, 6 pages
28. Due Process Complaint Notice dated 7/17/09, 5 pages
29. Due Process Complaint Notice dated 6/25/09, 7 pages
30. Screening Information Form dated 8/2/10, one page
31, Behavior Intervention Plan, prepared >) Ri iT MS, ED, BCBA with attached functional Behavior Assessment dated 6/22/10, 12 pages
32. Functional Behavior Assessment with attached Behavior Intervention Plan, prepared _y ii a MS, ED, BCBA dated 6/4/10, 12 pages
33. Student Progress Report by Hated 5/1/10, 3 pages
34. Functional Behavior Assessment prepared by Idated 3/30/10, 6 pages
35. Behavior Intervention Plan prepared by << 3/30/10, 6 pages
36. Education Evaluation by BE Ph.D. dated 2/16/10, 5 pages
37. Progress Monitoring Improvement Report for [student] dated 9/16/09-6/9/10, one page
38. Reading Improvement Report dated 2009-2010, one page
39, Behavior Rating Scale Summary dated 5/5/09, 4 pages
40. valuation by JM Phd. dated 12/11. 12/16 an , 21 pages
4) RE Evaluation by RY Pb. dated 5/21,6/96, 5 pages
42. A Evaluation Report by BE Psychologist dated3/19/95, 3 pages
43. Report Card-Marking Period 4 with Attached Computer Keyboarding Final Examination dated 4/26/10-6/25/10, 5 pages
44. Attendance Records dated 2006-2008, one page
45. SEIT Monthly Progress Notes dated 82510, one page
46. Placement Services, Inc. Attendance Sheet dated 8/2/10-8/25/10, one page
47. Placement Services, Inc. Attendance Sheet dated 8/16/10-8/25/10, one page
48. Placement Services, Inc. Attendance Sheet dated 8/2/10-8/13/10, one page
49. Security Incident Report dated 6/8/10, one page
50. Security Incident Report dated 6/8/10, one page
51. Security Incident Report dated 6/8/10, one page
52. Withdrawn
53. Po High School Discipline Letter dated 6/2/10, one page
54. ich School Discipline Letter dated 5/2/6/10, one page
55 RR ich School Discipline Letter dated 5/24/10, one page
56. Withdrawn
57. Withdrawn
58. Withdrawn
59. Withdrawn
60. Withdrawn
61. Withdrawn
62. Withdrawn
63. Student Suspension List dated 2008-2009, one page
64. Letter from a. [Parents] dated 8/17/10, one page
65. Withdrawn
66. Withdrawn
67. Withdrawn
68. Letter from|T to [Parents] dated 7/15/10, two pages
69. Letter from TTto Rates 7/9/10, 2 pages
70. Letter from [Parents] to Ms. Jj dated 6/18/10, 3 pages
71. Letter from re. to [Parents] dated 6/10/10, 2 pages
72. Alternatives for WE os. Release of Information dated 5/12/10, one page
73. Letter from [Parent] to Ms. | | dated 4/19/10, 2 pages
74, E-mail from [Parent] to Mrs dated 1/21/10. one page
75. E-mail from [Parent] to [Parent] to Mrs. BE c2tcc 1/20/10, one page
76. Letter from Jo [Parents] dated 9/3/09, 2 pages
77. Hearing Officer’s Findings of Fact and Decision dated 8/2/10, 2 pages
78. Student Assignment dated 4/14/10, one page
79, Decision on Merits dated 2/11/10, 24 pages
80. School Year Academic Calendar dated 2009-2010, one page
81. Withdrawn
82. Meeting Notes dated 6/5/08, one page
83. Meeting Notes dated 5/20/08, one page
84. Withdrawn
85. Withdrawn
86. Withdrawn
57 ne ? arent Questionnaire no date, 36 pages
88. Copy of [Student] June 8, 2010 Incident DVD dated 6/8/10
89. Copy of [Student] December 7, 2009 Window Incident dated 12/7/09
90. Withdrawn
91. Third Amended Notice of Claim of [Parents] v. District dated July 20, 2009
Mr. IJ also submitted a 29-page Memorandum of Law.
STATEMENT OF FACTS
GEs a0 18-year-old senior in the Union Free School District. The most recent JEP on which the parents and District agree is dated June 1, 2010 [D-2]. The student’s disability is listed as “ ” The recommended special education programs and services listed on that IEP are as follows: Special Education Programs: Start End Ratio Freq Period Duration Location
Integrated Co-Teaching 9/7/10 6/24/11 NA 5 Weekly 40 mins English/ ELA Language
Arts Class
Integrated Co-Teaching 9/7/10 6/24/11 NA 5 Weekly 40 mins Social Social Studies Studies
Class
Special Class Learning 9/7/10 6/24/11 15-1-1 5 Weekly 40 mins Special Lab Class
Related Services
P| 9/13/10 6/17/11 1-1 1 Weekly 30 mins Therapy
Room
Special Education Programs-Extended School Year
Academic Instruction W/SN0 =8/1B/10— 1-1 5 Weekly Ilhr Home Home Reading Program W510 =8/13/10 1-1 3 Weekly hr School Program Modifications/Accommodations/Supplementary Aids and Services
Preferential Seating Start 9/7/10 and End 6/24/11
Assistive Technology Devices/Services:
The student will have access to a Lap Top for note taking and extended responses such as essays and reports.
Testing Accommodations
A variety of testing accommodations are to be provided the student.
On June 8, 2011, the student had a serious altercation in the High School. On June 24, 2010, the District’s CSE met and concluded that the student’s behavior on June 8, 2010 was a manifestation of his disability [D-1]. Further, the CSE “reached a consensus of homebound instruction pending an out-of-district placement. A x evaluation is requested; however, the parents state they will not provide consent.”
On June 15, 2010, the student’s parents file a Due Process Complaint Notice. That Complaint Notice was amended twice and, on August 24, 2010, the parents filed a final notice entitled, “Amended Due Process Complaint Notice to Amended Complaint Dated July 8, 2010, Currently Being Heard by Hearing Officer | (THO-1).
Student’s School Background
For grades K-5, @qgP attended the UFSD;
AWrMNPe
For 6" and 7" grades, the student attended the [EE School, For grade 8 and part of grade 9, the student attended the School; the student returned to the —The student was School;
In January of 2009, In February of 9" grade, the student transferred to the On December 8, 2009, an incident occurred in school. and spent the night ini Pending suspension, the student was withdrawn from school. The parents tried, unsuccessfully, to enroll the student in an upstate school district;
On January 10, 2010, the student returned to the MM Ursp and was placed in the in-district PASS program; On September 15, 2010, as Hearing Officer, J issued a “Final Revised Interim Decision on Pendency.” That Decision concluded that the student’s pendency placement will be as shown on his IEP dated 6/1/10 with two caveats:
1. The student’s reading instruction will take place during the school day;
2. His academic Instruction/homework tutoring will take place at home during a mutually convenient time; For the 2010-2011 school year, from the date of my Interim Decision and continuing through the date of this Decision, the student has remained as a Senior in the High School.
PARENT’S POSITION
The parents raised the following issues in their brief:
L. “The FBA/BIP was not an independent Evaluation by Mrs.
2. The decision by the CSE on June 24, 2010 for the incident on June 8, 2010 being a manifestation of| disability is not an appropriate determination by the CSE. The incident of June 8, 2010 did not take place as reported by school administration or employees and did not warrant the action taken by the district or its employees;
3. The decision by Mrs. PE to change placement from an inclusion setting to homebound instruction pending out of district placement is not an appropriate determination.
4. The CSE was not appropriate in making a determination to recommend a cseee, emmresman aluation on based on the June 24, 2010 CSE anifestation Review Team meeting;
5. The IEP dated June 24, 2010 is not representative to the actual facts of the CSE meeting, i.e. Comments Section and Goals and Objectives;
6. Closing Argument on D #88, 8 video clips in evidence by District.” [Parent Brief-pp.3-26]
In their “Conclusion,” the parents also make the following additional claims:
1. ”Mrs. and Ms §iiivere inappropriate in their recommendation for a valuation, and, in fact, were the only two committee members to address this issue;
2. The IEP, as written, contain numerous misrepresentations;
3. With respect to the English Regents, the spell check was not turned off.” [Parent Brief-pp.32-34]
DISTRICT’S POSITION
The District raises the following points in its brief:
1. “The Impartial Hearing Officer Lacks Jurisdiction to Expunge Student
Records;
2. The Impartial Hearing Officer Lacks Authority Over Student Grades; oo The Impartial Hearing Officer Lacks Authority Over Determination of Guilt or Innocence Pursuant to 3214;
4. The Impartial Hearing Officer Has No Jurisdiction to Make Declaratory
Rulings;
5. The Impartial Hearing Officer lacks Jurisdiction Over Events Occurring
During the 2010-2011 School Year;
6. The Issues in This Hearing Are Limited to Those Properly Before the Impartial Hearing Officer and Properly Raised by the Parent in the Due Process Complaint.
7. The Purposes of the Manifestation Determination is to Prevent Disciplinary Changes in Placement Without Manifestation Team Review of Nexus;
8. The CSE’s Recommendation for a J Examination was Appropriate,
9. The Parent Not Entitled to Dictate Requirements for Evaluation;
10. The Recommended Change in Placement was Appropriate Based on the Information Before the CSE on June 24, 2010;
A. The CSE Discussed the Student’s Present levels, Abilities and Needs;
B. The CSE Discussed the Student’s Placement.” [District’s Memorandum of Law-pp.i,11]
ISSUES
In this Decision, each of the issues and points raised by the parents and the District will be addressed.
BACKGROUND
“The purpose behind the Individuals with Disabilities Act (IDEA) (20 U.S.C. Sec. 1400-1487) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE) (20 U.S.C. Sec. 1400[[d] [1] [A]; Schaffer v. Weast, 126 S. Ct. 528 [2005]. A FAPE includes special education and related services designed to meet the student’s unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. Sec. 1401[8]; 34 C.F.R. Sec. 300.13; see 20 U.S.C. Sec. 1414[d].
A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive education benefits (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]. While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). If a procedural violation has occurred, relief is warranted only if the violation affected the student’s right to a FAPE (J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 [2d Cir. 2000]). A denial of a FAPE occurs when procedural inadequacies either result in a loss of educational opportunity for the student, or seriously infringe on the parents’ opportunity to participate in the IEP formulation process (see Werner v. Clarkstown Cent. Sch. Dist., 363 F.Supp. 2d 656m 659 [8.D,N.Y. 2005]; W.A. Pascarella , 153 F. Supp. 2d, 144, 153 [D. Conn. 2001]; Briere v. Fair Haven Grade Sch. Dist., 948 F. Supp. 1242, 1255 [D. Vt. 1996], or compromise the development of an appropriate IEP in a way that deprives the student of educational benefits under that IEP (see Arlington Cent. Sch, Dist. v. D.K., 2002 WL 31521158 [S.D.N.Y. 2002]). In evaluating the substantive program developed by the SCS, the Second Circuit has observed that “’for an IEP to be reasonably calculated to enable the child to receive the educational benefits, it must be likely to produce progress, not regression” (Weixel v. Bd. Of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. v. Bd. Of Educ., 231 F.3d 96m103 [2d Cir. 1998] [citation and internal quotation omitted]). To do this, the record must be examined for “any objective evidence indicating whether the child is likely to make progress or regress under the proposed plan” (Grim, 346 F.3d at 383 [citation and internal quotation omitted]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). This progress, however, must be meaningful; i.e., more than mere trivial advancement (Walczak, 142F3d at 130). The IDEA, however, does not require school districts to develop IEPs that maximize the potential of a student with a disability (Rowley, 458 U.S. at 197 n.21, 199: See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d.at 379; Walczak, 142 F.3d at 132; Antonaccio v. Bd. Of Educ., 281 F. Supp. 2d 710, 726 [S.D.N.Y. 2003]).
An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 020-014; Application of a Child with a disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). An IEP must include a statement of the student’s present levels of educational performance, including a description of how the student’s disability affects his or her progress in the general curriculum (34 C.F.R. Sec. 300.347[a] [1]; see also 8 NYCRR 200.4[d] [2] [i]). School districts may use a variety of assessment techniques such as criterion-referenced tests, standard achievement tests, diagnostic tests, other tests, or any combination thereof to determine the student’s present levels of performance and areas of need (34C.F.R. Part 300, Appendix A, Section 1, Question 1).”
DECISION
Many issues have been raised during these Hearings, but the event which precipitated the most recent Due Process Complaint filed by the parents was the incident which occurred in the High School on June 8, 2010. As such, it will be addressed first.
June 8, 2010 Incident
A great deal of testimony and evidence has been offered relative to the altercation that occurred on June 8, 2010. The parties disagree on important details. Certain facts, however, are clear.
Chemistry Teacher testified that, on June 8, 2010, the fire alarm sounded in the High School [T-pp. 605-606]. The students left their classrooms and headed towards the building exit. The all-clear sounded and the students returned to their classrooms. (Apparently, a piece of toast had burned in the cafeteria.)
Shortly after the students returned to classroom, the fire alarm sounded again, only this time the student’s Chemistry teacher learned it was a false alarm [T-p.605]. Apparently, the alarm system was in the process of being reset. The Hall Duty Teacher testified that the all-clear “was given—a time period before that, yes. It was told almost at the same time as the second alarm. It was told within a minute of that alarm that it was a false alarm and everybody needed to go back to class. There was an announcement” (T-3982].
Students returned to their regular day’s activities. However, ae: a friend did not go back into their classroom, Room 119 [T-p. 3772-3774].
It should be noted that the MAHigh School has video cameras installed in the ceilings in the corridors throughout the School. A copy of the videos with various clips was introduced into evidence [D-88].
testified, and the school’s video system clearly shows, that (ij and his friend continued down the corridor away from their classroom, through one set of double doors, turned left and proceeded through two double-doors heading for the exit from the building. As they approached Room 164, near the school exit, the teacher on hall duty asked them where they were going. The two students are shown on the video tape, pointing towards the fire alarm lights on the corridor walls which were still flashing at that point. According to the teacher on hall duty, she said, “You need to return where you came from. It was a false alarm. Go back to class” [T-3982]. friend is shown in the video turning and going back in the direction from which he had come. ME ssife that he “was explaining to her that the fire alarm was going off and I need to get out of the building as quickly as possible” [T-p.3774].
The video clip shows BE arcuing with someone in front of him who is not shown on the video. The hall duty teacher testified that it was she who kept telling the student to return to his classroom. The student testified that the hall duty teacher “told me, ‘What are you doing out of class?,’ that I should be in class, that I should have been in class 15 minutes ago” [T-p.3774].
At this point, the hall duty teacher, who was a very credible witness, testified that the student began yelling at her and o a testified, with a certain degree of embarrassment, that, “He told me I was icking on him. He told me to leave him the BR alone” [T-pp.2986, 3987].
The Hall Duty Teacher, who had never net before, stated that she was upset to hear such language. She testified, “I honestly don’t get spoken to that way ever. I was flustered. I will admit that I was. I didn’t know what to do with him in that position. I really just wanted him to go back to class” [T-pp. 4037-4038].
A security guard, who also testified that he had never met the student before, overheard the yelling andj He ordered the student to stop and go to the Dean’s Office [T-p.4330]. At this point, the video clip shows the security guard lifting a radio to this mouth. The hall duty teacher testified, “I think he was alerting other security guards that they were walking and calling for assistance” [T-p.4038].
testified that the security guard “was screaming very loud. He was nasty. I don’t know what was wrong with him. | told him not to get nasty with me” [Tp.3775]. As turned around, he testified that he “called him [the security guard] an asshole because of the nastiness he showed me. He treated me with disrespect. All I was doing is what I was told to do. The fire alarm went off and I was proceeding like you should do” [T-p.3776].
At this point, the student testified, and the video clearly shows, that [IE headed back in the direction from which he had come. The security guard testified that he followed the student and kept repeating that he had to go to the Dean’s Office [T.p.4330]. The student proceeded through a pair of double doors, turned right, went through a single set of double doors and was heading in the direction of his classroom. The video clips show him arguing with someone behind him who is not visible on the video. A later clip shows | arguing with the security guard and, twice, thrusting his finger inches from the security guard’s face [D-88].
When GE p proached Room 119, his Chemistry Class, he testified that he told his teacher:
“I asked her—I told her that this guy is not letting me go back to class and I don’t understand what I did, that I am going to speak to Ms. ay school psychiatrist, is what I told her” [T-p.3783].
It should be noted that a: what has been referred to as, a “Cooling-Off Pass.” When he feels anxiety and is becoming agitated because of some event in his school experience, he can request the Pass from his teacher and leave the classroom to see Ms Fe discuss his feelings. (Later, he kept the pass in his pocket.) The Pass is not meant to excuse any misbehavior but, rather, a means of avoiding the misbehavior before it occurs. Once commits the misbehavior, the Pass to Ms. Ms not being used as intended. In BIP, Ms. J makes the point that, “This Pass can be utilized only if acting out behaviors have not yet occurred” [D-32].
AS creer his classroom, he went past the doorway and kicked the locker. The video clip shows |, who is about the same height as the security guard, turning around towards the security guard and a physical altercation develops. The security guard testified:
“That’s when he swung at me and he grazed my cheekbone and that’s when I kind of blocked him and then I had to push him against the locker to detain him there, to calm them them down and he still wouldn’t calm down” [T-p.4336].
enies hitting the security guard in the face with his fist. Due to the angle of the camera, the video is not absolutely clear on whether or not the student struck the security guard in the face, but it clearly depicts a serious physical altercation initiated i It should be noted (ha Chemistry Teacher who viewed the inc distance of a few feet testified that SR struck the security guard with his fist.
She stated that she heard a commotion and went to the open classroom door [Tp.608]. She testified:
“A. He was coming down the hallway. He was agitated. When he got past my — a little before my door, he said I’m going to the counseling center. Then he kicked the locker, punched the locker and then turned around toward the security guard. He said I’m going to the counseling center. As he passed my door, he kicked the locker and then punched the locker and then he turned around toward the security guard. After he turned around, he pulled his arm back, formed a fist and went towards the security guard, took several steps toward the security guard to punch the security guard. The security guard tried to deflect --.
Q: How far away was he from the security guard?
Three or four feet.
CPQFDS
Could he have hit the security guard?
Yes.
Did you see him make contact with the security guard?
A. The security guard, this hand, his right hand went up so a: fist went over his hand, so it went towards his face like into here, but the security guard deflected the punch. It made
— it made contact here, but not a full punch. (indicating)
Q. When you say here, you’re referring to the security guard’s eye?
A. Okay. Can say it here? The left-hand side of his face underneath the eye.” [T-pp. 609-611]
BE :estitied, flatly, that he did not hit the security guard [T-p.3786].
The video of the corridor in front of Room 119 ends with a rear view of another security guard who, apparently, had been called for assistance, rushing down the corridor towards the student. When the student and the first security guard separate, the student continued down the corridor away from his classroom, and turned left around the corner. Apparently, other security guards met the student there; however, for purposes of this case, we are limited to the events that occurred before he turned left around the corner.
Why Was the Student in Front of Room 164 in the First Place?
To understand the events of this fateful day, we must ask the question, “How did nd up in front of Room 164, far from his classroom, after the false alarm?” journey began when QE Chemistry teacher announced that the second alarm was false and that students in her class who were now in the corridor between her class and the room next door “should come back” [T-p. 606]. Apparently, the class heard her because, as she testified, “Everybody came back except two students, | another student” [T-p.606].
ae: his friend ignored the teacher’s command and continued down the corridor in the direction of the exit. Is it possible they did not hear their teacher? Perhaps, but we cannot overlook a series of warning signs that, haceqjfpeeded them, would have helped him avoid the [jJconfrontation with the hall duty teacher And the security guard. These warning signs should have caused to pause and consider what he was doing. For whatever reason ther consciously or unconsciously, ignored these warning signs.
First Warning Sign:
When 4 alked away from his classroom, didn’t he realize the rest of the class, exce r one friend, had gone back into classroom?
Second Warning Sign:
When he and his friend were walking towards the first set of double doors, didn’t
BB tice that his class mates were not with him?
Third Warning Sign:
When EBked through the pair of double doors towards Room 164, didn’t he notice that the corridor was not filled with students from other classes who would have been exiting the building with him if there had been a real fire alarm?
Fourth Warning Sign:
When xits the double doors heading towards Room 164, didn’t otice that the few students in the corridor that he encountered (as shown on the video) were not exiting the building but, apparently, going about their regular school business? Some were turning right and some were turning left. None appeared to be exiting the building. The hall duty teacher testified, when she was commenting on the video, that she knew the students who were in the corridor. She testified that some were heading for a testing session and others were heading to the computer lab [T-pp.4041-4049]. None were leaving the building.
Fifth Warning Sign:
The final and unequivocal warning that P| did not heed was the specific statement by the Hall Duty Teacher that it was a false alarm and he was to return to his class. There could be no misunderstanding as to what she was saying. a's: to ignore her directive.
Most worrisome in this entire case is trying to understand a thought process. Why did GR ignore these five warning signs and en up in the violent confrontation that ensued? No evidence or testimony was presented during these Hearing to shed any light on this issue.
a: not a retarded student. His Chemistry Teacher testified that! was doing weil, academically [T-p.598]. His 2009-2010 School Year 3" Quarter Progress Report and Report Card as well as his 2010-2011 1st Quarter Report Card reveal hat BR eccived passing grades in all of his subjects [P-12, P-13]. Intellectually, there does not seem to be any question but that he has the capacity to know what he was doing. Why he ignored all the warning signs leading to trouble and why he reacted so violently to what is a relatively minor offence, i.e. being out of class without permission, is unknown. What motivated him to act as he did?
It should be noted that the CSE, at its June 24, 2010 meeting, recommended that aa: a evaluation. Perhaps, a complete and current examination by a competent professional can shed light on his motivatio ns, so that can better understand himself, and his family and the school staff could be guided to help him make appropriate choices as he goes through life.
Manifestation Determination
On June 24, 2010, the District’s CSE met to consider a program review and manifestation determination. According to the IEP dated June 24, 2010, the Committee reviewed the conduct of the student on June 8, 2010 “in which the student was involved in a physical altercation with a school security guard” [D-1]. The High School Dean, BEBE ported on the details of the incident. Mr.
After discussion, the Committee “reached a consensus that there is a substanti al relationship between the student’s behavior and disability. The behavior subject to disciplinary action is a manifestation of the student’s disability” [D-1].
There are a number of reasons which lead me to doubt that determination.
The relevant section of the Commissioner’s Rules and Regulations is Section 201.4, entitled Manifestation Determinations, which reads as follows: (a) General requirement for manifestation review. 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: (1) A decision is made by the superintendent of schools to change the placement of a student to an interim alternative educational setting pursuant to section 201.7(e) of the Part; or (2) A decision is made by an impartial hearing officer to place a student in an interim alternative educational setting pursuant to section 201.8 of this Part; or (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 the Part to impose a suspension that constitutes a disciplinary change in placement.
1. Determination of Guilt Before Manifestation Hearing The wording of the report that Mr: gave at the CSE Manifestation
Hearing on June 24, 2010 about the student’s behavior is almost identical to the wording of Dr. letter to the parents dated June 10, 2010 [P68]. In that letter, Dr EE unmarizee the incident of June 8, 2010.
That letter, however, does not indicate that Dr. had reached a final conclusion about the student’s behavior. In the first two sentences of the letter, Dr. ses the words, “may be subject to discipline” and “may be subject to suspension.” In the second paragraph, he writes, “Prior to a final decision by me on this matter, I will provide you with an opportunity to request an immediate informal conference with the complaining witnesses and me.”
Clearly, Mcrae had not yet concluded that the student was innocent or guilty of the charges described in his letter. In fact, Ms. testified that Dr: did not make his final determination until late July 2010 [T —p.4156]. The following exchange between Mr. | Ea Ms. i the actual date:
“Q. I will show you a letter dated July 28, 2010 from Dr. ato [Parents]. Can you identify that document?
A. Yes, I can.
Q. What is that document?
A. _ This is a letter Dr. sent to [Parents] determining the outcome of his investigation” [T - 4146].
The CSE met to make its manifestation determination on June 24, 2010, more than a month befor ination was made that the student was guilty of the charges listed in Dr. s letter of June 8, 2010.
Section 201.2 requires a decision that the student is guilty of the charges against him be made before a manifestation hearing is held, not after. The CSE was premature in its action.
2. 10-Day Limitation
Section 201.2 also states that the manifestation hearing must take place no more than 10 days after the suspension decision. Here, the manifestation hearing took place approximately 34 days before the guilty decision.
3. Relationship of Student Behavior and Disability a. Incident 1:
On October 30, 2009, the District’s CSE met to consider a manifestation determination for the student as a result incidents in which the student was allegedly cursing, disobedient, insubordinate, breaking a school rule concerning use of a cell phone and defying a directive from the Principal [D8]. At this time, the student was classified with 2 EE sit a After discussion, it was the Committee’s consensus that:
“The student’s disability did not play a role in the behaviors that lead to his suspensions. The student’s disability did not impair his ability to understand the impact and consequences of his behavior which was subject to disciplinary action.”
b. Incident 2:
On January 4, 2010, the District’s CSE met to discuss a manifestation determination for the student as a result of behaviors similar to what had been considered a few months earlier at the October 30, 2009 CSE
Manifestation Determination meeting [D-6]. This time, there were statements concerning repeated incidents of insubordination to school personnel, physical contact with a security guard, breaking a main office window with his elbow and leaving school property without authorization.
The student was still classified with a Pe
After discussion, it was:
“The consensus of the CSE that a Nexus does not exist between the student’s disability and his inappropriate behavior of 12/7/09.” c. Incident 3:
On June 24, 2010, the District’s CSE met discuss a manifestation determination for the student as a result of behaviors similar to what had been considered at the previous manifestation meetings [D-1]. The student was in a physical altercation with a security guard, refused to follow directives, and used profanities towards a hall duty teacher. The student was still classified with a
After discussion, this time:
“The Committee reached a consensus that there is a substantial relationship between the student’s behavior and disability. The behavior subject to disciplinary action is a manifestation of the student’s disability.”
There were three incidents about which the CSE met to consider the issue of manifestation. All three were similar. Yet, in two of them, the CSE found that the behavior of the student was not a manifestation of his disability. In the third, with similar behavior and the same disability, the CSE found that there wasa manifestation of the student’s disability. Why? No explanation, either in testimony or evidence, has been offered at any of the Hearings in this case that could shed light on why the CSE changed its position.
Why would the behaviors attributed to this student be a manifestation of his
What could be the connection? When Ms. §§iiithe school an questioned about this, the following exchange took place:
“Dr. a I think what we are getting at here is you mentioned all these misbehaviors, impulsivity, et cetera, et cetera, but his classification, even as late as June 24, is Ms BB And we asked for a Mook at it further” [T-983].
Ms nes be correct and, on the basis of a current and complete examination, the student’s classification might be changed. However, on June 24, 2010, when the CSE decided that there was a manifestation between the student’s disability and his behavior, the student was classified as | I believe that the CSE was correct in concluding that the June 8, 2010 incident was a manifestation of his disability; however, it was not a manifestation of the disability listed on his IEP.
During these Hearings, no evidence or testimony was presented to explain why the student’s listed disability remained the same despite the student’s long history of turbulence, aggressive acts, insubordination, disrespect, cursing, defiance and acting out behavior.
Conclusion:
For the reasons cited above and based on the student’s classification, I believe the CSE was correct in its first two determinations and, for whatever reason, erred in its third. The finding by the CSE that the student’s behavior on June 8, 2010 was a manifestation of his disability is inconsistent with the law, the CSE’s own prior decisions and a factual analysis of the student’s disability as it relates to his behavior.
Was It Appropriate for the CSE to Recommend a EE Exam for EP
Based on the evidence and testimony in this case, I believe that the CSE acted appropriately when it recommended a GEE ¢V2!vation for|
School History
school history reveals great difficulty in a adapting to a school setting. He began in the | UFSD but then went through a series of changes.
First, he was removed from the I vrsp and placed in HEE2 private school.
Then, he was removed from and placed nim another private school.
Then, he was removed from [iiifand placed in| another private school.
Then, he was removed from and placed in the ee FSD.
Then, he was removed from the J UFSD and an unsuccessful attempt was made to place him in an upstate school district.
Then, he was placed in the District’s PASS program.
Then, on June 20, 2010, the CSE recommended that he be placed on home bound instruction pending an out-of-district placement.
After his early school years, FC had very little opportunity to experience the advantages that most students enjoy in a stable school setting. It is difficult to believe that these constant changes did not have a negative effect on his personality and adjustment to school? Problems in UFSD
In the relative few school years EI spent in the WE secondary schools, he demonstrated negative behavior on a number of occasions, ranging from showing disrespect to fj outbursts,
1. On 10/23/09, FG teacher told him, “to go to the test center to take a social studies test. He had to be told 4 times to go there. His response was, “You are so fucking racist.’ He left the room (236). He never arrived at room 211 for his test” [D-64]
2. On 10/23/09, freer teacher asked him to move his table so she could use the table for test completion. “He said, ‘What scumbag threw that?’ I asked him not to say the word again. He repeated his statement and then said, ‘I can call someone a scumbag.’ I again asked him not to say that word and he again repeated it. I requested he go the Referral Room. He left and returned telling me
Dr. JJ wasn’t there. I repeated my request for § o go to the Referral
Room. He complied whenI called the office for security [D-63].
3. On October 30, 2009, the CSE met to consider a Manifestation Determination concerning a: behavior for which he was suspended from school [D-8].
He had broken a school rule, used a cell phone, and directly defied a directive from the school principal.
4. A meeting of the District’s CSE was held on 1/4/10 [D-6]. The Committee Minutes states:
“The purpose of this CSE was to conduct a Manifestation Determination following this student’s recent suspension and subsequent Superintendent’s Hearing.
The disciplinary incident of 12/7/09 was read to the CSE. Information included:
repeated incidents of insubordination to school personnel; physically pushed a security guard in the main office in view of school employees; broke a main office window with his elbow; left school property without authorization.”
5. Ms JB estifies about an incident that occurred on 3/26/10. mover a arelatively negative weekly report. He got upset, tore up the report and left the classroom [T-p. 1256]. When he was asked for a pass, he said, “Go fuck yourself” and left the building without permission [P-31].
6. Msfitestified that Js father explained to her that:
“They were having problems at home with SR RTIETE He had begum having difficulties following the rules at home, stayed out at night with his phone turned off, that [fhad been involved, that he had to pick up at a girl’s house inMMor somewhere like that, and he also indicated that (had not been at home the night before and he had contacted [an agency that assists parents in managing students who are having problems].”
7. cemracl teacher testified about an incident on May 26, 2010, when ecame so disruptive in class that she had to call security to escort him out of the room [T-p.103Q].
8. On June 8, 2010, the incident occurred that discussed in detail at the beginning of this Decision.
The record shows clearly that, as the years progressed, the frequency and intensity of misbehavior increased markedly. His emotional outbursts were often uncontrollable. Relatively minor matters quickly escalated into major and violent confrontations. He has to learn to control himself if he wants to graduate with his classmates and go on to a successful career in the world of work or to higher education.
There can be no question but that the CSE’s recommendation for evaluation was appropriate. The CSE members complied with Section 200.4 (b) of the Commissioner’s Regulations, reviewing Es present levels and abilities of functioning, discussing the Functional Behavior Assessment and the draft of the Behavior Intervention Plan. They discussed his needs and the fact that his inappropriate behavior resulted in disciplinary action which was adversely affecting his educational performance.
It should be noted that all members of the CSE agreed to the recommendation of a eet except the parent and the tutor [T-p.1680].
Functional Behavior Assessment and Behavior Intervention Plan
The parents may have legitimate concerns about the speed with which the FBA and the BIP were completed but there can be little argument that they were done professionally and thoroughly. Ms. came across as a knowledgeable and competent educator. While the parents contend that she was controlled by the District, and that the FBA/BIP “was not an independent evaluation by Mrs. JJ [Parent Briefp.8], there is little evidence to support that position.
Ms. received input from GRE <achers and service providers, spoke with and met with the parents [T-pp. 409-412]. Ms. Mis a behavior specialist who is an outside evaluator. Her reports are complete, specific and practical [D-31, D-32, D-34, D-35].
The major contention of the parents is that they requested the FBA/BIP so as to avoid any future issues between a end security/hall duty teachers. The parent’s intentions are good but, in a school with over 3000 students and staff, their expectations are not easily met. Even assuming that every teacher in the High School who could ever be scheduled for hall duty and every security guard received a copy of! S FBA/BIP at the beginning of the school year, understood it and pledged to follow it faithfully, how would that avoid the problems A had? Not having regular contact with a. could we reasonably expect them to recognize throughout the year and be prepared to implement the recommendations of Ms. a? Even if all the hall duty teachers/security guards were alerted to problems at the beginning of the school year, how realistic is it to expect them to remember him, never having met him before, at the end of the school year, i.e. June 8? Certainly, they could be alerted to accept the “Cooling-Off Pass” without consequence, as Ms. BE suggests [D32]. However, from a practical point of view, it would difficult to implement the FBA/BIP throughout the year for all hall duty teachers/security guards. &
When a down the corridor during the fire alarm incident on June 8, 2010 trying to exit the building, what was the hal! duty teacher supposed to do? Would she be violating the FBA/BIP if she asked and his friend were they were going? When they responded, was she wrong to point out that there was no fire and they were to return to their classrooms? Was she supposed to close her eyes to their attempt to leave the building? Perhaps, she could have been alerted to keep her tone of voice non-threatening. In any event, the FBA/BIP should-not be used to excuse acting-out behavior.
When the security guard heard the yelling and cursing, was he supposed to ignore this emotional outburst? How would the FBA/BIP help avoid the problem the security guard had with The FBA/BIP can be of enormous help co ME ; teachers who come in regular contact with him and can provide them with critical guidance in dealing with misbehavior. However, just as with the “Cooling-Off Pass,” the FBA/BIP is not meant to excuse misbehavior after it occurs. The FBA/BIP is an important aid in dealing with . However, in my judgment, Sjjiiloeeds far much more intensive, professional and individualized assistance than that provided by a FBA/BIP or a Cooling-Off Pass.
Homebound Instruction Pending Out-Of-District Placement
Based on the evidence and testimony, I must conclude that the CSE acted appropriately when, based on what was known as of June 24, 2010, “The committee reached a consensus of homebound instruction pending an out-of-district placement [D1].
The District is correct when it points out, in its brief, that:
“Is is well established that an appropriate placement must reflect the specific student’s need. Application of a Child with a Handicapping Condition, Decision No.990-5 (1990). The District is ‘obligated to provide an appropriate program for [the Student]. An appropriate program must include instruction specifically designed to meet the unique needs of the pupil, which is supported by such services as are necessary to permit the pupil to benefit from instruction.’ When making a recommendation for placement, the CSE must base its recommendation on the Student’s identified needs at the time the recommendation is made. Application of a Child with a Handicapping Condition, Decision N. 91-7 (1991)” [District Brief ~p. 23].
The CSE, at its meeting on June 24, 2010, discussed the student’s present levels of functional performance and his motivation to do well [D-1]. One of a : teachers reported that when he “is academically frustrated or unsuccessful, he has presented with behavioral outbursts, will use profanities and is non-compliant with directives. The student’s behavioral and management needs have escalated to the point where he will cry, repeatedly curse at adults, disregard directives, act in an aggressive manner and, in an attempt to escape, will leave school grounds.” The CSE reviewed a FBA dated March 30.2010, revised 6/04/10 as well as BIP. [It should be noted that the parents disagreed with both the FBA and the BIP]. Additionally, there are concerns with the student’s safety, as well as the safety of others, and overall functioning which impedes the student’s academic progress.”
When she testified about placement, Ms expressed her concern about selfcontrol. She testified that, “In a school of 3,000 students and hundreds of staff, it’s difficult for us to manipulate the environment and control every aspect of that building and that environment [T-p.1446]. She concluded that a smaller structured environment would be appropriate for J [T-p.1455].
Indirectly supporting the position that a smaller environment would be appropriate for Dr. noted, in his evaluation of 12/9/04 and 12/17/04, that, “Currently, is at the IE School and there are [children in his class. i: not a behavior problem” [P-9]. we, At the CSE meeting of June 24, 2010, Leesrinh reading teacher and his homework tutor both noted that vas respectful, diligent and worked well in the individualized setting [D-1]. In the classroom environment, where he cannot get the same individualized attention, he gets frustrated teacher of record testified that the frequency and intensity of his outbursts seemed to get worse as the year went on [T-p.1057]. Ms. Ij testified that, as the year progressed, she observed escalating behaviors and less engagement [T-p.1299]. Further, Ms. testified about safety concerns related tos habit of leaving the building when he became angry [T-p.962]. She noted that, as a senior, ggMhad a car in the parking lot and, when he fled the building, unfocused and suddenly irate, she was concerned about safety [T-p.964]
In view of what had occurred over the years, culminating in the June 8, 2010 incident, and taking in consideration all of the steps taken by the District to deal with a problems, I believe the recommendation by the CSE tha i be placed 0 n home instruction pending exploration of an out-of-district placement ‘was appropriate.
Expunging Student Records
The District takes the position that the Impartial Hearing Officer lacks jurisdiction to expunge student records and I must agree. Application of a Student with a Disability, Decision No. 08-125 and Application of a Student with a Disability, Decision No.96-50 (1996) both make that point absolutely clear. I must reject any request to expunge student records. The parents must look to FERPA for relief.
Authority over Grades
Similarly, the District is correct when it contends that the Impartial Hearing Officer does not authority over student grades. That position is supported by the State Review Officer in Application of a Student with a Disability, Decision 03-033 (2003) and in Application of a Student with a Disability, Decision No. 08-069 (2008). Parent claims with respect to this issue must be dismissed.
Authority over Determinations of Guilt or Innocence Pursuant to Section 3214
I concur with the District that the Impartial Hearing Officer lacks authority over issues of guilt or innocence pursuant to Section 3214. Application of a Child with a Disability, Decision NO. 01-099 (2001) makes that point abundantly clear. However, it should be noted that, with regard to the June 8, 2010 incident, the High School Principal did not make a determination of guilt or innocence before the CSE met on June 24, 2010. In my determination on the issue of manifestation, as noted earlier in this Decision, I did not address the question of whether 7: guilty or not of the charges listed in the High School Principal’s letter, but, rather, the timing of that decision.
Jurisdiction over Events Occurring during the 2010-2011 School Year The position that “An IEP is a ‘snapshot’ taken at a particular point in time” has long been the accepted rule in impartial hearings. See, Application of a Child with a Disability No. 96-25, Roland M. v. Condord School Committee, 910 F.2"4 983, 992 (1stCir. 1990), Cert. Den. 449 U.S. 912 [1991]. I have followed that rule throughout these Hearings and reviewed the manifestation determination and the CSE program placement recommendation in that light.
Jurisdiction to Make Declaratory Rulings
I concur with the District that the declaratory rulings are beyond the jurisdiction of the Impartial Hearing Office. I agree that, “Pursuant to the Regulations, a decision of an IHO shall be made, ‘on substantive grounds based on a determination of whether the student received a free appropriate public education’” 8 NYCRR 200.5())(4). I tried to make that point clear with the parents several times during these Hearings.
CONCLUSION
Based on the testimony and evidence in this case, I must conclude that:
1. The June 8, 2010 incident was not a manifestation cS CO listed disability;
2. Accurrent and complete psychiatric evaluation of a: appropriate;
3. The recommendation of the CSE at its June 24, 2010 meeting that Jpe placed on homebound instruction pending out-of-district placement was appropriate;
4. The Impartial Hearing Officer has no jurisdiction over: Expunging student records; ofgBDo
Grades;
Determinations of guilt or innocence pursuant to Section 3214; Events occurring in the 2010-2011 school year; Declaratory Rulings.
5. There was no convincing evidence or testimony that the FBA and the BIP were not an independent evaluations by Ms. [Jor that they were “at all times controlled by Ms MM and/or her direct staff,” as claimed by the parents.
Final Thoughts e District must be commended for the time and effort spent in providing ‘ with an appropriate education. The range and depth of the special education services provided a are impressive. The academic results speak for themselves and the District can be justly proud that they met their professional obligations with success.
I commend the parents for working so hard on behalf of their son. p has shown impressive potential and, with the proper help, he can fulfill that potential to everyone’s benefit. I implore the parents to contact the District staff immediately and take advantage of their offer to make arrangements for a current and complete evaluation.
SO ORDERED THIS ELEVENTH DAY OF MAY, 2011
PLEASE TAKE NOTICE:
Upon receipt of this Decision, the parents and /or the Board of Education have a right to obtain a review by the State Review Officer of the New York State Education Department, under the Education Law, IDEA, and such other laws as my be applicable. Please note the time limits as shown in Part 279 of the Regulations of the Commissioner of Education, as amended, effective June 2004: : Section 279.2 Notice of Intention to Seek Review (b) The notice of intention to seek review shall be served upon the school district not less than ten (10) days before service of a copy of the petition for review upon such school district, and within twenty-five (25) days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within thirty-five (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 (4) days subsequent thereto shall be excluded in computing the twenty-five (25)-or thirty-five (35) day period.
Please refer to the complete Part 279 for additional details. Failure to file a petition in a timely fashion will result in a waiver of the right of appeal of this Decision.