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NEW YORK STATE DEPARTMENT OF EDUCATION
.....................................................................................
REDACTED, by and through his Parent,
PREHEARING CONFERENCE SUMMARY & ORDER,
Petitioner, AND ORDER DISMISSING THE COMPLAINT
- against - SED Case ID 548632
SCHOOL DISTRICT, JAMES D. BILIK, Hearing Officer
Respondent.
.......................................................................................
On December 21, 2020, the REDACTED School District (“District”) received a due process complaint notice (“complaint”) from petitioner pursuant to the IDEA. This Hearing Officer was appointed to preside over the case on December 28, 2020.
The Parent is represented by REDACTED. The District is represented by REDACTED.
The allegations in the complaint largely center on the District’s actions in determining on December 18, 2018 that the conduct of the Student that led to disciplinary action against him in September 2018 was not a manifestation of his disability. A lengthy out-of-school suspension was imposed.
On January 20, 2021, the District served a motion to dismiss the complaint on several grounds. The Parent submitted opposition papers on January 28, and the District submitted a February 4, 2021 reply at my request on the effect of the Governor’s Executive Orders on the timeliness of the complaint.
On February 5, 2021, a prehearing conference was held by telephone with the attorneys named above. Neither party objected to my serving as Hearing Officer. At the prehearing conference, I granted the Parent’s request for an opportunity to respond to aspects of the District’s mootness defense. The Parent’s response was served on February 12, and the District submitted additional material in support of its motion to dismiss on February 22, 2021.
Motion for Extension of 14-Day Period for Holding a Prehearing Conference
According to SED, the 14-day period for commencing the hearing or holding a prehearing conference expired on February 3, 2021. On January 22, 2021, I sent the parties an email granting their joint motion for a two-day extension of the 14-day time period so that the February 5, 2021 prehearing conference was timely. This disposition of the motion was based upon my careful consideration of the cumulative impact of the factors set forth in 8 NYCRR
§200.5(j)(5)(ii). Specifically, I found: (1) that the delay will not adversely affect the child’s educational interest or well-being in that it was agreed to by the Parent, is only two days in duration, and is unlikely to delay ultimate disposition of the case, which currently has a compliance date of March 6, 2021; (2) that without such extension the parties will not have a fair opportunity to present their respective cases in accordance with due process; and (3) that no adverse financial or other detrimental consequences are likely to be suffered by either party as a result of the delay. Nor was there evident any past delay by either party that would militate against granting the request.
District’s Motion to Dismiss the Complaint The relief sought in the complaint is: (1) that a determination be made that the manifestation determination team erred in finding on December 18, 2018, that the Student’s conduct that resulted in his suspension from school was not a manifestation of his disability; (2) that the Student’s disciplinary record be expunged; and (3) that the District reimburse the Parent for all expenses associated with attempts to rectify the District’s aforementioned failures, and such reimbursement shall include and shall not be limited to attorneys’ fees and costs.
The District’s motion urges dismissal based upon the two-year statute of limitations applicable to requests for a due process hearing under the IDEA, and alternatively, because the complaint is moot, the Student having ceased enrollment in the District, and the period of suspension at issue having ended in September 2019. The District also argues that the Parent is precluded from seeking expungement of the Student’s disciplinary record because a prior decision of the Commissioner of Education refusing to disturb the long-term suspension imposed on the Student should be given collateral estoppel effect here, or because I lack jurisdiction to order such expungement in this proceeding.
For the reasons that follow, I dismiss the complaint on grounds of mootness and lack of subject matter jurisdiction. The Student is 19 years old and not currently enrolled in the District. The law is clear that my subject matter jurisdiction pertains to any matter relating to the identification, evaluation, or educational placement of a child with a disability, or the provision of a FAPE to such child. 34 CFR §300.507(a); 8 NYCRR §200.5(j)(1).
The issue of the validity of the December 18, 2018 decision of the Manifestation Determination Review team in this case would pertain to educational placement, in that if the team had determined that the conduct at issue was a manifestation of the Student’s disability, the result would have obviously been something other than an out of school suspension through September 23, 2019, which was what was imposed on the Student. If the result of an MDR is a determination that the student's behavior was not a manifestation of his or her disability, "the relevant disciplinary procedures applicable to children without disabilities may be applied to the child in the same manner in which they would be applied to children without disabilities."1 However, if the result of the MDR is a determination that the student's behavior was a manifestation of his or her disability, the CSE is required to conduct a functional behavioral assessment (FBA) and implement a behavioral intervention plan (BIP); or if the student already has a BIP, review the BIP and modify it as necessary to address the behavior.2
1 20 U.S.C. § 1415(k)(1)(C); 34 CFR §300.530(c); see Educ. Law § 3214(3)(g)(vi).
2 20 U.S.C. § 1415(k)(1)(F)(i)-(ii); 34 CFR 300.530(f)(1)(i)-(ii); 8 NYCRR 201.3.
Except under "special circumstances" as defined in the IDEA and regulations, the district must also return the student to the placement from which he or she was removed or suspended.3
That being said, I agree with the District here that the Parent’s claims regarding the validity of the determination of the MDR team are moot. In Application of a Student with a Disability, Appeal No. 11-064, cited by the District, the student’s conduct was determined by the MDR team to not be a manifestation of the student’s disability with regard to some of the charges, and an out-of-school suspension from February 3, 2011 to June 30, 2011 was imposed.
The parents’ due process complaint was heard on an expedited basis, and the IHO issued a decision on May 4, 2011, upholding the MDR team’s determination. By the time the SRO decided the student’s appeal, the suspension and the school year were already over. In the circumstances, the SRO concluded that the student’s claims were moot because a decision rejecting the MDR team’s determination would have no actual effect on the parties. The SRO cited settled law that a case is moot where it does not involve a real and live dispute. See also, Chamber of Commerce v. Pataki, 100 N.Y.2d 801 (2003) (mootness exists where a finding in favor of the proponent of the claim or defense would “have no practical effect on the parties”).
I find the reasoning of the SRO in Appeal No. 11-064 to be sound, and worthy of application in this case. The term of the Student’s suspension ended in September 2019. The Student is not enrolled in the District, and the Parent has not alleged that the Student seeks educational services of any kind from the District. In these circumstances, the sorts of consequences which could ensue from the MDR being overturned, e.g., effects on the Student’s FBA or BIP, do not pertain.
The Parent asserts that the claim is not moot because if I were to overturn the MDR team’s determination, the Student could use my decision to seek amendment or expungement of relevant portions of the Student’s disciplinary record pursuant to FERPA, which in turn could be helpful to him as he pursues employment or educational opportunities. However, Veronica P. v. Radcliff A., 24 N.Y.3d 668 (2015) and Aryeh v. St. John’s University, 154 A.D.3d 747 (2d Dep’t 2017), cited by the Parent, do not support his position on mootness. In both cases, claimants’ claims were found to not be moot despite a two-year order of protection issued by the Family Court in Veronica P. having expired, and the two-semester disciplinary suspension/probation imposed by the law school in Aryeh having been served, because both adverse determinations were deemed to still “impose significant enduring consequences” upon the claimants.
In this case, unlike those cases, it is difficult to conceive of how a decision in the Parent’s favor in this due process hearing would counter any “significant enduring consequences.” First, the regulations governing applications to have student records amended under FERPA (set forth at length below) give school districts discretion to decline to do so even after a student prevails at a hearing held pursuant to FERPA.4 Thus, even if I were to overturn the MDR team’s determination, it is purely speculative whether there would be any change made in the Student’s record after a subsequent FERPA hearing, and even if there were a change made, whether it
3 20 U.S.C. § 1415(k)(1)(F)(iii); Educ. Law § 3214(3)(g)(3)(viii); 34 CFR 300.530(f)(2); 8 NYCRR §201.4(d)(2)(ii).
4 If, after such a hearing, a board of education declines to amend a student's records, the student's parents have no more than a right to place a statement disagreeing with the board's decision in the student's records (see 34 C.F.R. § 300.569[b]). would go beyond merely amending the MDR team’s determination. There is no basis for me to assume that the school district would or even could delete the fact that the suspension was imposed. The fact that the Student could have a statement placed in his record objecting to actions taken or not taken by the District after a successful FERPA hearing, or that he could argue to prospective employers and institutions of higher education that there would have been no such suspension if the MDR team had made the correct decision, do not obviate the fact that in the circumstances presented, it is speculative at best whether a decision in the Parent’s favor in this due process complaint would counter significant enduring consequences, or make any practical difference for the Student. Given all these factors, I conclude that the claims regarding the MDR team’s determination are moot.
Further, I lack jurisdiction over the second and third items of relief requested here, i.e., that the Student’s disciplinary record be expunged, and reimbursement of the Parent for attorneys’ fees and other costs of challenging the District’s actions. The latter is for the courts, not for a due process hearing. E.g., Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); Application of a Student with a Disability, Appeal No. 19-121, n. 12.
Regarding my jurisdiction to order that the Student’s disciplinary record be expunged, I find persuasive the reasoning in the SRO’s decision in Application of a Student with a Disability, Appeal No. 08-069. In that case, the sole issue that was raised in the due process complaint and not determined to be moot, was the Parent’s request that the student’s grades be amended.
The SRO in Appeal No. 08-069 reviewed the two separate processes, i.e., the due process framework for challenging violations of the IDEA, and the separate process by which a parent can seek amendment of student records under FERPA. As explained in that decision:
The Individuals with Disabilities Education Act (IDEA) provides for impartial hearings and State-level reviews in matters relating to the identification, evaluation or educational placement of students, or the provision of a FAPE (20 U.S.C. §1415[b][6][A]; 8 NYCRR 200.5[i][1], [j][1]). However, a separate portion of the IDEA (20 U.S.C. §1417[c]) requires the Secretary of Education to promulgate regulations for the protection of the rights and privacy of parents and students in accordance with the provisions of the Family Educational Rights and Privacy Act (FERPA) (see 20 U.S.C. §1232g). The relevant federal regulations under the IDEA (34 C.F.R. §§300.567-570), prescribe a specific procedure for challenging alleged inaccuracies in a student's educational records. Upon the request of a parent, a school district must render a decision and then provide an opportunity for a hearing to challenge information in a student's records (id.). However, the IDEA regulations (34 C.F.R. §300.570) provide that such hearings are to be conducted in accordance with the procedures specified in 34 C.F.R. §99.22, rather than the hearing procedures for other kinds of claims asserted under the IDEA, which are to be conducted pursuant to 34 C.F.R.
§§300.506-510. If, after a hearing, a board of education declines to amend a student's records, the student's parents have the right to place a statement disagreeing with the board's decision in the student's records (see 34 C.F.R.
§300.569[b]; see also Application of the Dep't of Educ., Appeal No. 05-
036; Application of a Child with a Disability, Appeal No. 01-099; Application of a Child with a Disability, Appeal No. 94-9). Based on the above, I find that in this case, the parent did not follow the proper procedure to effectuate a grade change by filing a due process complaint notice for an impartial hearing; therefore, their claim for an order directing the district to change the student's grade is denied.
The SRO concluded that the IHO had no jurisdiction over the parent’s request for amendment of the student’s records.5 The same result is called for here: I lack jurisdiction to order expungement of the records of the discipline imposed on the Student.
Based on the above, I dismiss the complaint as all items of relief requested in it are either moot or beyond my jurisdiction.6 In light of this determination, I do not reach the District’s arguments concerning the statute of limitations or collateral estoppel.
IT IS SO ORDERED.
Dated: Albany, NY
March 1, 2021
JAMES D. BILIK, ESQ.
Impartial Hearing Officer 1971 Western Ave., #161
Albany, NY 12203
518-496-4159 jdbilik@gmail.com
Copies to: All Counsel via Email
5 The decision in Application of a Student with a Disability, Appeal No. 08-106 is to the same effect.
6 Applying the framework in F.R.C.P. 12(b)(6) here by analogy, dismissal is appropriate if the remedies sought in a complaint are not available. E.g., Gerosa v. Savasta & Co., Inc., 329 F.3d 317 (2d Cir. 2003).