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CASE NUMBER: 570468 - NYC: 224409
FINDINGS OF FACT AND DECISION
Student Name: (REDACTED)
(“Student”)
Parent Names: (REDACTED)
(“Parent”)
Case Number: 224409
Birthdate: (REDACTED)
District: (REDACTED)
Hearing Requested By: Mother
Date of Request: 2/10/22
Date(s) of Hearing: 2/15/22, 2/18/22, 2/28/22
Actual Record Closed Date: 02-28-22
Date of Decision: 03-10-22
Hearing Officer: Vandana Chak
Appearing for the Parent: (REDACTED)
(REDACTED)
Appearing for the District: (REDACTED)
STATE EDUCATION DEPARTMENT OF NEW YORK
_______________________________________________X In the Matter of a Complaint Pursuant to Part 200 of the Case No.: 224409
Regulations of the Commissioner of Education Regarding,
STUDENT[1], a minor, by and through his
Parent(s) (REDACTED) FINDINGS OF FACT, CONCLUSIONS OF LAW
Petitioners AND DECISION
-against-
NEW YORK CITY DEPARTMENT OF EDUCATION,
Respondent.
________________________________________________X
INTRODUCTION AND PROCEDURAL BACKGROUND
This matter was assigned to the hearing officer on February 11, 2022 (IHO Ex. I) and came before the hearing officer by way of a due process complaint filed by the Parent or Petitioner on or about February 10, 2022 (IHO Ex. II). This is a disciplinary case following a manifestation determination. As such the governing regulations are found in Part 201 of title 8 of the New York code of Rules and regulations. A pre hearing conference was held in this matter on February 15, 2022. At this hearing Parent sought to overturn the manifestation determination review (“MDR”) and are seeking a finding that the behavior that led to his suspension was a manifestation of his disability, which is emotional disturbance. Parent requested on February 15, 2022 that Student be immediately reinstated to his classroom and that any notation of suspension be expunged from his records and finally, any other relief that would be appropriate. (Tr. 3). At this hearing Respondent, the New York City Department of Education (hereinafter “DOE” or “Respondent” or “District”) stated that the case was in investigation and after a discussion Parent requested that District communicate their position by the end of the day, and Parent requested a resolution session that day or the next. (Tr. 4). Parties choose February 18, 2022 for a hearing in the case.
At February 18, 2022 hearing District presented its witnesses and Parent was present at the hearing. District presented two witnesses (REDACTED), School Psychologist (REDACTED) and the School Teacher (REDACTED) (Teacher). Parent asked that the hearing continue to another date. Parent Exhibits A through M were read into the record and admitted into evidence with Parent identifying the exhibits. District Exhibits 1 through 6 were read into the record and were admitted on February 28, 2022.
This case surrounds an incident after dismissal just outside of the school building on the street or sidewalk area (Tr. 34), that involved the Student. The incident occurred on January 25, 2022 and an MDR was held on February 10, 2022. The Student received a 13 day superintendent’s suspension. The School was on winter recess the week prior to February 28, 2022. As of February 28, 2022 Student was no longer in suspension.
District’s position is that the determination made at the MDR was appropriate (Tr. 14 & 23), it was made by an appropriately constituted MDR team that appropriately determined that the incident, which resulted in the student's suspension was not a manifestation of his disability (Tr. 23).
Parent did not testify or examine any witnesses. Parent avers in its opening and closing statement that Student’s issues of physical aggression are related to his emotional disability and thus Student was wrongfully suspended for a related issue of physical aggression. (Tr. 24).
The issue for the hearing is an appeal from a manifestation determination review.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter “IDEA”), 20 U.S.C. § 1400 et seq., and the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. § Part 201.
FINDINGS OF FACT
1. Student is (REDACTED) years old. He attends (REDACTED) grade at (REDACTED) in (REDACTED), Queens. He has a disability classified of emotional disturbance.
2. On January 25, 2022 an incident took place and Parent’s opening statement explains it as an incident in which Student REDACTED between other students.
3. Student's Manifestation Determination Review (MDR) meeting was held on February 10th, 2022 (Tr.23). Student received Superintendent’s suspension for a period of 13 days.
4. The composition of the MDR meeting included the Parent, Parent Advocate and Parent’s counsel (REDACTED) Esq., the principal, (REDACTED), the assistant principal, (REDACTED), the Dean, (REDACTED), the social worker, (REDACTED) (phonetic), (REDACTED), ELA Teacher now and his teacher in Grade (REDACTED) and (REDACTED), School Psychologist was part of Student’s Functional Behavioral Analysis and Behavior Intervention team in Grade (REDACTED). (Tr 37, 72). I find it was a duly constituted meeting.
5. I find that the MDR team went over relevant documents including the video of the incident. The parent had documents or was able to access them electronically at any time throughout the school year. Parent did not provide testimony in this case.
6. The MDR team found that the behavior was not a manifestation of the Student’s disability because –although the Student had exhibited behavioral difficulties in the past, classroom avoidance, eloping from class room, and problematic behavior when asked to do work and to maintain focus in classroom, behavior that Student manifests in school, these behaviors did not rise to the point of physically hitting a peer he did not know in the head. (Tr. 23-24).
7. Student’s special education documents included numerous references to physical aggression, hitting, and other similar behaviors. The March 13, 2017 IEP, under Study Skills (Ex. B-2) observes that Student calls out of turn and gets mad at the student answering the question, and often mumbles things to them. Student is unable to remain quiet throughout the day ( Ex. B-3). Often times, Student tantrums and in these tantrums, he will kick his desk and chairs, run outside the room and sit in the staircase. He will threaten to hit or punch other students if they look at him and cry (Ex. B-3). It observes that Student has acted on these threats on many occasions. If he does not do it at the time the issue is going on, he will wait until he can act on his threats even if it is days later. After he kicks or punches the other child, Student will cry in frustration because he knows he should not have hurt another person. (See. Ex. B-4 ‘Social Development’).
8. The Educational Evaluation of October 18, 2018, (Ex. F), observes that Student often gets upset and will scream at the teacher or students when something happens that he does not like. (Ex. F-3). He at times feels angry when people bother him. He will walk out of class, hit, yell and curse. (Ex. F-3). His teacher reports that "(REDACTED) displays a high number of aggressive behaviors and may be reported as being argumentative, defiant, and/or threatening to others." (Ex. F-3).
9. The IEP dated November 5, 2018 (Ex. C), records that pursuant to the BASC-3 rating scale, Student’s score on Anger Control falls in the At-Risk classification range, Aggression falls in the Clinically Significant classification range, Externalizing Problems in the At-Risk classification range; score on Bullying falls in the Clinically Significant classification range. His teacher reports that he has a tendency to be disruptive, intrusive, and/or threatening toward other students. (Ex. C-3).
10. The Functional Behavioral Analysis (FBA) done of Student in December 2019 (Ex. 4) identifies frequent eloping from class as a problem behavior with giving of a direction by an adult as a trigger event. The resulting Behavioral Intervention Plan, BIP, (Ex. 5) identifies the problem behavior of the FBA as Aggression both verbal and physical towards peers and teachers, paraprofessional/Verbal threats to peers and teachers, and paraprofessionals. (Ex. 5-1). Managing this behavior is the core concern of the October 30, 2019 IEP (Ex. D) and is reflected in the Social History Update of November 2019 and Classroom Observation of November 2019, (Ex. 3). These behaviors the BIP records are most likely to occur when in unstructured settings, group/peer activities. The IEP of December 15, 2020 (Ex. E) observes Student’s belligerence and use of inappropriate language when something happens that he does not like. (Ex. E-1 & 3). Anger, aggressive verbal communication, feelings of frustration, difficulty with authority and being argumentative and defiant are continuing concerns of the December 2021 IEP. (Ex. 1-3).
11. The Dean’s behavioral anecdotal logs (Ex. 6) indicate the following events from October to January 2021. It describes 19 separate incidents over the course of three months. (Tr. 28). Refusal to complete work in class, yelling, sleep in class, storming out of the class, refused to remove hoodie, being disruptive and cursing all through the class. (Ex. 6).
12. In Present Levels of Performance and Individual Needs, explaining Student’s Social Development it observes that Student remains angry and frustrated, is argumentative and defiant and confrontational (Ex. 1-3, Tr. 69).
13. Since the FBA was conducted in December 2019 Student’s record during 2020 does not reflect an occurrence of a physically violent episode as Student would not have had extensive social contact with teachers or peers due to pandemic distancing. Now that the schools are open the record demonstrates that Student as of January 25, 2022 was involved in a physically confrontational behavior. The IEP of December 21, 2021 clearly indentifies the nature of Student’s problem behavior when it observes that “he still lacks some awareness of positive peer-to-peer interactions.” (Tr. 46). One of the counseling goals in this IEP (Ex. 1-6) builds coping strategies for Student to regulate his upset, anger, frustration and engaging in unexpected behavior.
14. The December 21, 2021 IEP does not including positive behavioral interventions, support and other strategies to address behaviors that impede the student's learning or that of others nor does it recommend that student needs a behavioral intervention plan. (Ex. 1-4).
EVIDENCE SUBMITTED AT HEARING
DISTRICT EVIDENCE
No/
Description
Dated
Pages
1.
IEP
12/17/2021
15
2.
Social History
11/27/2019
1
3.
Classroom Observation
11/27/2019
1
4.
FBA
12/09/2019
5
5.
BIP
12/09/2019
4
6.
Various dates
Dean Record Anecdotal
4
PARENT EVIDENCE
A
Due Process Complaint
2/10/2022
B.
IEP
3/13/17
C.
IEP
11/5/18
D.
IEP
10/30/19
E.
IEP
12/15/20
F.
Educational Evaluation
10/18/18
G.
Charge Sheet
1/25/22
H.
Records Cover Sheet
2/8/22
I MDR Work Sheet Undated
J Report Card 2/7/22 K. Email to Dean 2/7/22
L Email from Dean 2/7/22
M
Written Statement of Suspension
1/31/22
CONCLUSIONS OF LAW
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404(1)(c); see M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010)).
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education,
A determination that conduct was a manifestation of a student’s disability must be made if the conduct in question was “caused by or had a direct and substantial relationship to the student’s disability” or if the conduct was a direct result of the school district’s failure to implement the IEP (8NYCRR §201.4 (c) and (d)). In the event that the conduct is found to be a manifestation of a student’s disability, the CSE must conduct an FBA and implement a BIP, and (in general) return the student to the placement from which the student was removed (8NYCRR §201.4 (d)).
The participants at the MDR meeting must include a district representative, the parents, and the "relevant members" of the CSE as determined by the parent and the district (20 U.S.C. § 1415[k][1][E][i]; Educ. Law § 3214[3][g][2][ii]; 34 CFR 300.530[e][1]; 8 NYCRR 201.4[b]). State regulations additionally require that the parent receive written notification prior to any manifestation team meeting "to ensure that the parent has an opportunity to attend" (8 NYCRR 201.4[b]). Further, State regulations require that such written notice inform the parent of the purpose of the meeting, the names of the people expected to attend, and the parent's right to have relevant members of the CSE participate at the parent's request (id.).
Within 10 school days of any decision to change the placement of a student with a disability because of a violation of a code of student conduct, the manifestation team must "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" (8 NYCRR 201.4[c]; see 20 U.S.C. § 1415[k][1][E]; 34 CFR 300.530[e][1]). While courts have not interpreted 8 NYCRR 201.4(c) to be exhaustive, requiring review of every piece of information contained in a student's educational file, a manifestation team must "review the information pertinent to that decision" (Fitzgerald v. Fairfax County Sch. Bd., 556 F. Supp. 2d 543, 559 [E.D. Va. 2008]).
If the parent of a student with a disability disagrees with: (1) a school district's decision regarding the student's placement, including but not limited to the decision by the district to place the student in an IAES; or (2) a determination of the manifestation team, the parent may request an expedited impartial hearing (20 U.S.C. § 1415[k][3][A]; 34 CFR 300.532[c]; 8 NYCRR 201.11[a][3]-[4]; see Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d 198, 201-02 [2d Cir. 2007]).
The charges in a student disciplinary proceeding need only be “sufficiently specific to advice the student and counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing. Bd. of Educ. of Monticello Cent. School District v. Commissioner of Education, et al., 91 NY2d133; Appeal of D.B., 57 Ed Dept. Rep. Decision No. 17, 244; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895. As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ. of Monticello Cent. School Dist. at 140).
I find that the video recording of the incident that both parties referenced without any discrepancies, Parent’s exhibits and the information provided by District to Parent provided sufficient information for Parent and the student to prepare an effective defense. Thus, to the extent Parent challenges the notice of charges as insufficient to apprise them of the conduct with which the student was charged, is without merit. Parent’s counsel’s claim that Parent found about certain Student records for the first time (Tr. 26), is not supported by Parent’s testimony stating so.
Case law also recognizes that students may be disciplined for conduct that occurred outside of school that may endanger the health or safety or pupils within the education system or adversely affect the education process. (Matter of Coghlan v. Bd. Of Educ. of Liverpool Cent. School Dist. 262 AD2d 949,citing Pollnow v. Glennon, 594 FSupp 220, aff’d 757 F2d 496.)
Finally, all reference to the suspension should be expunged from the Student’s record. Expungement is supported by the State Review Officer’s Decision, Application of a Child with a Disability Appeal No. 02-064.
I note that the record is replete with evidence of the Student’s impulsivity.
As outlined above, the Student has an established history not only with impulsive behavior and physical aggression, but also with running ahead of supervising adults and peers, and the District, with the information available to them, should have more fully explored the connection between this ongoing behavior and the Student’s documented disability.
I find that the Student’s behavior on January 25, 2022 was a manifestation of his disability. His previous behaviors evidence a continuous pattern of aggressive behaviors which included both verbal and physical aggression. The behavior had a substantial relationship to his disability in general, and, specifically, to his emotional disturbance disability. The present levels of performance and the counseling goals on the IEP (Ex. 1), make clear the Student’s emotional difficulties and that they were a part of his disability.
At the next school-based CSE meeting, the CSE must determine whether the student’s behavior necessitates conducting an FBA and/or developing or reviewing a BIP. If the student requires an FBA, one must be conducted, and a decision must be made as to whether the student requires a BIP. If the student requires a BIP, it must be developed and implemented immediately. If the student already has a BIP, it must be reviewed to determine if a new FBA is needed to gather new data or if changes need to be made to the BIP.
Based on the Findings of Fact and Conclusions of Law and all evidence before the IHO, it is hereby ORDERED that:
1. The Student’s record shall be revised to indicate that the behavior on January 25, 2022 was a manifestation of the Student’s disability.
2. The Student’s record shall be expunged of this charge.
The foregoing constitutes the order of the Impartial Hearing Officer.
Dated: March 10, 2022
_________________________________________
Vandana Chak
Impartial Hearing Officer
_________________________________________________________________________________
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov
IHO EXHIBITS
_________________________________________________________________________________
No.
Document
Date
Pages
I
Appointment of Hearing Officer
2-11-22
2
II
Due Process Complaint
2-10-22
6
III
District Evidence
2-28-22
31
IV
Parent Evidence
2-18-22
94
V
Transcript
2-15-22
11
VI
Transcript
2-18-22
59
VII
Transcript
2-28-22
56
Footnotes
[1] Personally, identifiable information is attached as a cover sheet to this decision and must be removed prior to public distribution.