NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
UNIVERSITY OF THE STATE OF NEW YORK
NEW YORK STATE EDUCATION DEPARTMENT
x Parent of {}, through Student {}, Petitioner, - against - ORDER OF DISMISSAL {} Central School District, Case # 511570
Respondent.
The Due Process Complaint in this case was filed on January 23, 2018. After the recusal of another hearing officer, the matter was assigned to the undersigned. On March 20, 2018, the parties and the hearing officer participated in a prehearing call. During this call, there was a discussion of issues, including a discussion about the location of the hearing. In particular, Petitioner was objecting to the location of the hearing. The school district had proposed that the hearing be held at the school district, as is typically the case in this jurisdiction.
The Hearing Officer directed Petitioner the parent to put the request for a change in location in writing via a motion. A hearing date was scheduled for April 13, 2018. No motion was filed.
However, on April 10, 2018, Petitioner sent an email to the hearing officer explaining why she was seeking a new venue. No affidavit or other document was attached to the email.
The April 13, 2018 hearing was cancelled because of the illness of Respondent’s counsel.
The parties agreed to hearing dates on May 2, 2018 and May 10, 2018. After confirming availability, Petitioner advised she was unable to attend the hearing on May 2, 2018. On April 28, 2018 the hearing officer confirmed the May 10, 2018 hearing date. On May 9, 2018, Petitioner objected to the hearing being held on May 10, 2018. On May 10, 2018, a conference call with the parties occurred. Petitioner indicated that she would not attend a hearing at the school district. The Hearing Officer again indicated that a motion would be required to change venue. During this call, the Hearing Officer indicated that he was of the belief that the applicable regulations do not give the parent the right to dictate the venue of the hearing. Also during the call, the Hearing Officer asked the parties if they were available for the hearing on June 6, 2018• The parties agreed on this date. No motion to change venue was ever filed.
On June 6, 2018, the Hearing Officer and the school district appeared at the school district for a hearing. Petitioner did not show up at the hearing. Respondent then moved to dismiss at the hearing. Respondent was directed to submit a formal written motion, which was served on June 27, 2018. (IHO Exh. 1). Petitioner responded to the motion on July 12, 2018 with a correspondence containing exhibits. (IHO Exh. 2).
CONCLUSIONS OF LAW
Hearing Officers have held that the failure to appear at a hearing date may result in dismissal. Application of a Student with a Disability, Appeal No 09-007. As the SRO held in Appeal No. 09-007, the parties are expected to comply with the reasonable directives of an impartial hearing officer.
SRO decisions also authorize dismissals with prejudice where there are non-appearances. Application of a Student with a Disability, Appeal No. 04-061.
Petitioner is refusing to appear at the hearing because of a perceived right to dictate the venue of the hearing. Petitioner asserts that the location at the school district is inappropriate because {}, the District’s Coordinator of Special Education, has been hostile to Petitioner. Petitioner contended that the actions of are meant to harass the parent and her advocates. These contentions are supported by an IHO decision, the affidavit of Petitioner, and the affidavit of the two advocates who are assigned to the case. These documents were submitted to the Hearing Officer in opposition to the school district’s motion.
If Petitioner’s allegations about {} are correct, they should be taken seriously. All parents should be treated with dignity and respect by school staff. It is noted that the school district did not present an affidavit from {} in response to these contentions. Still, Petitioner has pointed to no authority to support her position that she has the right to dictate the actual location of the hearing. The regulations only require that the location is convenient to the parent. 8 NYCRR 200.5(i)(3)(x)(giving the parent the right to a hearing “at a time and place that is reasonably convenient to the parent”). To this Hearing Officer, it is a stretch to say that the school district is an “inconvenient” location because there were inappropriate actions taken by one of the representatives of the District. There is no dispute that the location of the hearing, at the school district, is easily accessed by the parent.
Petitioner points to an online questionnaire published by New York State Education Department in support of this argument, but this citation supports the school district. This questionnaire specifically states that “the specific location is usually determined by the school district in conjunction in consultant with the IHO and the parent.” There is nothing in the questionnaire to indicate that a parent can decline to participate in a due process hearing because matters because a school district employee treated them poorly and tried to intimidate them.
It is noted that Petitioner’s argument also does not hold up because their objection is primarily to {}, not to the school district premises. Even if this hearing were held at the location preferred by the parent, {} could still come to the hearing and participate as the school district’s authorized representative. To this Hearing Officer, the ultimate issue is whether Petitioner can exclude {] from the hearing room except for his testimony. Petitioner admitted, in their motion papers, that they have no such right.
It is noted that Petitioner proposed, in her brief, that they would go to the hearing at the school district if the school district would agree not to use {} as its authorized representative at the hearing. This seems a reasonable compromise to this Hearing Officer, who has been urging the parties to try to resolve this issue throughout the proceedings. However, Respondent will not agree with this condition, as indicated in the email from {} dated August 30, 2018.
Clearly, these parties are at a stalemate with respect to the venue of the case. Even were this matter not dismissed, the matter would not move forward with a hearing date because the parent will not appear at Respondent’s premises, and Respondent will not appear at another location or with an alternative representative. Respondent urges that the matter be dismissed with prejudice, but dismissals with prejudice are ordinarily premised on bad faith. Here, Petitioner appears to have a genuine dispute as far as her rights are concerned, and the Student’s rights to a FAPE should not be permanently compromised as a result. Under the circumstances, the case must be dismissed without prejudice.
ORDER
As a result of foregoing, this matter is dismissed without prejudice.
Dated: September 7, 2018
Michael Lazan
Michael Lazan, Esq.
Hearing Officer
PLEASE TAKE NOTICE
The parent and/or the District have the right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act.
Forms are available at www.sro.nysed.gov/RevisedRegulationsOverview.html