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UNIVERSITY OF THE STATE OF NEW YORK
NEW YORK STATE EDUCATION DEPARTMENT
In the Matter of [REDACTED] (hereinafter referred to as) the “Parent”), on behalf of his son, [REDACTED])
(hereinafter referred to as the “Student”),)
)
Petitioners,) Jeffrey J. Schiro, Esq.
) Impartial Hearing Officer
-against-)
) IHRS
BOARD OF EDUCATION OF THE)
[Redacted] UNION FREE)
SCHOOL DISTRICT,)
)
Respondent.)
DECISION & ORDER
For the Student:
[REDACTED], Esq., Parent, pro se For the School District:
[REDACTED], Esq., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 10, 2022
For the Student:
[REDACTED], ESQ., Parent, pro se
For the District:
[REDACTED], ESQ., Attorney
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. On August 31, 2022, the school district received a due process complaint which initiated this matter (i.e., IHRS ). In that complaint, the parent asserts that the school district intimidated, interfered with, and/or retaliated against, third-party providers contracted by the school district to provide various services to the student (Ex. IHO-I).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (“CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R.
§§ 300.503(a)(1)-(2), 300.507(a)(1).
An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R.
§§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii).
The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration of the resolution session period. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR
§ 200.5(k).
II. PROCEDURAL HISTORY
On August 31, 2022, the Board of Education of the Westhampton Beach Union Free School District (the “District”) appointed the undersigned to serve as the IHO in this matter (i.e., IHRS ). See 8 NYCRR § 200.5(j)(3)(i). On September 12, 2022, the District served the parent with a combined verified answer and motion to dismiss the complaint (Ex. IHO-II). See 8 NYCRR §§ 200.5(i)(4)-(5). On September 14, 2022, the parent filed an affirmation in opposition to the District’s motion to dismiss (Ex. IHO-III).
In a letter to the parties dated October 4, 2022, I set forth disclosures concerning my prior professional background, requested the parties’ availability to participate in a pre-hearing conference and summarized the procedures which would govern the hearing (Ex. IHO-IV). A pre-hearing conference with the parties was thereafter held on October 10, 2022 to determine if there were any objections to my appointment, clarify the hearing issues, and set a calendar on the District’s motion to dismiss. See 8 NYCRR § 200.5(j)(3)(xi). At the October 10, 2022 pre-hearing conference, the parent withdrew claim 4(m) concerning the District’s alleged failure to complete the student’s “annual review CSE” for the 2022/23 school year, as that claim is the subject of another pending matter involving the same student with a disability, i.e., IHRS Case No. 582248 (R. 4-13). A briefing schedule was then set on the District’s motion (R. 24-25).[2] Thereafter, the parent filed a supplementary brief in opposition to the District’s motion to dismiss on October 26, 2022 (Ex. IHO-V) and on November 15, 2022, the District filed its reply in support of its motion (Ex. IHO-VI).[3]
Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time that the District received the parent’s due process complaint, i.e., August 31, 2022, the student was [REDACTED] years old and has a medical diagnosis of Down Syndrome, which has an impact on his motor and sensory development, and performance in the educational environment. The student's eligibility for special education and related services as a student with an intellectual disability is not in dispute in this hearing (Exs. IHO-I, IHO-II).[4] See 8 NYCRR § 200.1(zz)(7).
The student resides within the [REDACTED] School District (“[REDACTED]”). [REDACTED] is an elementary school district which ends at grade six. When children finish sixth grade at Remsenburg, they have a choice between attending middle school and high school in the [REDACTED] School District or the [REDACTED] School District. For all times relevant to this hearing, parents have elected for the student to receive instruction from the [REDACTED] School District. See Appeal No. 22-010 at 10 n. 13.
The student in this case has been the subject of fifteen prior State-level administrative appeals.[5] Accordingly, the parties’ familiarity with the student’s educational history is presumed and will not be restated here.
As noted in Appeal No. 22-010, the CSE convened on June 9, 2021 and June 27, 2021 to develop an IEP for the student for the 2021/22 school year. The June 2021 CSE recommended that the student receive the majority of his instruction in a 12:1+1 special class at the [REDACTED] Junior-Senior High School. The CSE also recommended that the student receive extended school year, or twelve-month, services from [REDACTED] Regional BOCES in [REDACTED]. The parents rejected both recommendations and filed for due process in a separate proceeding (i.e., IHRS Case No. 552797). During the pendency of that proceeding, the student received special education instruction and related services pursuant to a September 20, 2019 Pendency Agreement.[6]
In this matter (i.e., IHRS ), the parent alleges that during the 2021/22 school year, the District intimidated, interfered with, and/or retaliated against, third-party providers contracted by the school district to provide various services to the student, namely, the student’s aide, educational consultant, and transition coordinator (R. 11, 13; Exs. IHO-I, IHO-III). Among other relief, the parent seeks an order directing the District to remove the District’s Director of Pupil Personnel Services from the student’s CSE (Ex. IHO-I at ¶ 5).
The student’s aide provided transportation assistance and other non-teaching functions, such as attending to the student’s needs between the provision of services (Exs. IHO-I at ¶ 4(b), IHO-II at ¶ 19). The student’s aide was employed by a private agency and not the District (Exs. IHO-I at ¶ 4(f), IHO-II at ¶ 20). The school day in the District’s high school commences at 7:30 a.m., which is the time when the student begins receiving his related services under the September 2019 Pendency Agreement. Since the school bus drops the student off at school at 7:00 – 7:05 a.m., the student requires an aide to meet him and attend to him prior to the start of the school day (Ex. IHO-II at ¶ 21). At some point during the 2021/22 school year, the District determined to utilize a member of its staff to serve as the student’s aide to better support his needs (Ex. IHO-II at ¶ 22). The District asserts that it terminated the aide’s services for legitimate reasons; namely, that she was frequently late or absent to work, and routinely advised the District of such circumstance too late for it to locate a substitute aide to be present upon the student’s arrival at school (Ex. IHO-II at ¶¶ 21-22).
[REDATED] is contracted by the District as the student’s transition coordinator and provides parent training to the student’s family. Her agency employs [REDACTED], who serves as the student’s educational consultant (Exs. IHO-I at ¶¶ 4(b), 4(i), IHO-II at ¶ 25). The parent asserts that the District “has attempted to terminate [REDACTED] employ with the [student] because of her advocacy for the [student], and her role in testifying about IDEA based violations committed by the defendant school district against the [student]” (Ex. IHO-I at ¶¶ 4(g) – 4(h)). The parent further asserts that the District “attempted to enlist the cooperation of [REDACTED] to terminate the employ of [REDACTED]” (Ex. IHO-I at ¶ 4(i)). The parent concludes that the District’s “acts upon [REDACTED] and [REDACTED] are designed to improperly influence the integrity of the educational services provided by [REDACTED] and [REDACTED] to the [student]” and “are designed to influence the substance of their collective testimony within the context of ongoing due process complaint adjudications” (Ex. IHO-1 at ¶ 4(j)). The District denies that it retaliated against [REACTED] and [REDACTED] (Ex. IHO-II at ¶¶ 23-25).
IV. POSITIONS OF THE PARTIES
A. The District The District’s motion to dismiss the parent’s due process complaint should be granted. The parent’s due process complaint is insufficient and fails to state a claim upon which relief can be granted. The parent lacks standing to assert IDEA-based retaliation claims on behalf of the student’s aide, educational consultant, and transition coordinator (Exs. IHO-II, IHO-VI).
B. The Parent The District’s motion to dismiss should be denied in its entirety. The Second Circuit has not yet determined whether or not an IDEA-based retaliation claim is cognizable. The IHO has the authority to remove a CSE member for committing acts violative of the IDEA. The District’s Director of Pupil Personnel Services has engaged in coercive, retaliatory, and/or interfering acts upon the student’s related service providers and should be removed from the student’s CSE (Ex. IHO-V).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. General IDEA Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (1) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).[7]
A FAPE is offered to a student when: (a) the board of education complies 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 educational benefits. See Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
B. Motion to Dismiss
As a general matter, summary disposition procedures akin to those used in judicial proceedings are a permissible mechanism for resolving certain proceedings under the IDEA; however, they should be used with caution and are appropriate in instances in which “the parties have had a meaningful opportunity to present evidence and the non-moving party is unable to identify a genuine issue of material fact.” See J.D. v. Pawlet Sch. Dist., 224, F.3d 60, 69 (2d Cir. 2000); Application of a Student with a Disability (New York City Sch. Dist.), Appeal No. 11-090 at 3 n.3 (SRO Sept. 15, 2011); Application of a Student Suspected of Having a Disability, Appeal No. 11-044 at 5 n.5 (SRO June 22, 2011).
On September 12, 2022, the District moved to dismiss the parent’s due process complaint (Ex. IHO-II). Decision on the District’s motion was reserved until after a pre-hearing conference with the parties was held on October 10, 2022, and until after the parties’ submission of supplementary briefs supporting their respective positions, as an evidentiary record must be established to provide an adequate record for review (Exs. IHO-V, IHO-VI). See 8 NYCRR § 200.5(j)(3)(xii); Application of a Student with a Disability (Ardsley Union Free Sch. Dist.), Appeal No. 18-104 at 7 n.6 (SRO Nov. 14, 2018). Having reviewed the content of those submissions, I find that I now have sufficient evidence to make necessary findings of fact and of law relative to the District’s motion to dismiss.
1. Lack of Standing – Retaliation The parent’s claims of alleged retaliation against the student’s aide, educational consultant and transition coordinator must be dismissed due to a lack of standing.[8]
The standing requirement in Federal actions is grounded in the Federal constitutional requirement of a case or controversy. U.S. Const., art. III, §2, cl. 1. The core requirement to establish standing is an injury-in-fact. See Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 152-153 (1970). Although courts have disagreed on what is sufficient to constitute an injury-in-fact, the only courts that have addressed this issue in New York have found that the denial of a FAPE or of a procedural right created by the IDEA is sufficient to satisfy the injury-in-fact requirement. See S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 359-360 (S.D.N.Y. 2009); E.M. v. New York City Dep't of Educ., 2011 WL 1044905, at *6 (S.D.N.Y. March 14, 2011); see also Heldman v. Sobol, 962 F.2d 148, 154-56 (2d Cir. 1992).
The parent’s due process complaint alleges retaliation claims on behalf of third-party contractual employees of the District, specifically: [REDACTED], the student’s former aide; [REDACTED, the student’s educational consultant; and [REDACTED], the parent trainer and transition coordinator. The due process complaint sets forth the following retaliation claims on their behalf: that the District terminated the student’s aide “because of her advocacy for the complainant, and her role in documenting and reporting educational neglect inflicted upon the complainant,” (Ex. IHO-I at ¶¶ 4(d) - 4(e)); that the District “attempted to terminate [REDACTED] employ with the [student] because of her advocacy for the [student], and her role in testifying about the IDEA based violations committed by the defendant school district against the [student]” (Ex. IHO-I at ¶ 4(g)); and that the District “attempted to enlist the cooperation of [REACTED] to terminate the employ of [REDACTED]” (Ex. IHO-I at ¶ 4(i)). Even if true, those allegations do not constitute a denial of a FAPE or of a procedural right created by the IDEA sufficient to satisfy the injury-in-fact requirement for standing.
The relationships of the student’s aide, educational consultant, and transition coordinator with the District are voluntary and contractual, and not based on the IDEA’s substantive and procedural entitlements. Neither the IDEA nor New York law affords the parent of a student with a disability the right to bring IDEA claims on behalf of third parties. Cf. 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1); 8 NYCRR § 200.5(i)(1). Even if such claims were permitted, the opinions allegedly shared by the student’s aide and educational consultant were not activity protected by the IDEA. Lastly, two levels of administrative review have concluded that the student was not denied a FAPE during the 2021/22 school year. See Appeal No. 22-010.
Alternatively, to the extent that the student’s aide, educational consultant, and transition coordinator were the subject of intimidation or retaliation by District personnel, that “injury” belongs to them, and not the parent or the student, who lack the necessary standing to advance such claims in this due process hearing.
- • Collateral Estoppel – Removal of School Personnel It is well-established that the doctrine of res judicata and the related doctrine of collateral estoppel apply to administrative proceedings when the agency acts in a judicial capacity. See K.C. v. Chappaqua Cent. Sch. Dist., 2017 WL 2417019, at *6 (S.D.N.Y. June 2, 2017); K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 (S.D.N.Y. Jan. 13, 2012); Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp. 2d 529, 554-55 (S.D.N.Y. 2010); Grenon v. Taconic Hills Cent. Sch. Dist., 2006 WL 3751450, at *6 (N.D.N.Y. Dec. 19. 2006).
The doctrine of collateral estoppel "precludes parties from litigating a legal or factual issue already decided in an earlier proceeding." Grenon, 2006 WL 3751450, at *6. To establish that a claim is collaterally estopped, a party must show that:
(1) the identical issue was raised in a previous proceeding; (2) the issue was actually litigated and decided in the previous proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the resolution of the issue was necessary to support a valid and final judgment on the merits.
See Grenon, 2006 WL 3751450, at *6; Perez, 347 F.3d at 426; Boguslavsky v. Kaplan, 159 F.3d 715, 720 (2d Cir. 1998).
Among other relief, the parent seeks the removal of the District’s Director of Pupil Personnel Services from further involvement in the student’s CSE (Ex. IHO-I at ¶ 5). Applying the doctrine of collateral estoppel, I find that the parent is precluded from litigating that legal issue as it has already been decided in prior proceedings.
On August 30, 2021, the District received a due process complaint which initiated IHRS Case No. 556183. In that due process complaint, the parent sought an Order directing the removal of the District’s Director of Pupil Personnel Services from further involvement in the student’s CSE, claiming that she violated the student’s right to a FAPE by reprimanding (in writing), and/or retaliating against, a third-party consultant retained by the District to provide services to the student. Following an October 4, 2021 pre-hearing conference, the parent’s due process complaint in IHRS Case No. 556183 was dismissed in a Decision & Order dated November 12, 2021. In the November 12, 2021 Decision & Order, I found that the parent’s due process complaint failed to state a claim upon which relief could be granted because removing a pupil personnel services director from a CSE is beyond the jurisdictional limits of impartial due process hearings under federal and State law (Ex. IHO-II ex. B).[9] See Appeal No. 21-249 at 3.
Thereafter, the parent appealed the November 12, 2021 Decision & Order in IHRS Case No. 556183 to the SRO. See N.Y. Educ. Law § 4404(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k). In a decision dated January 28, 2022, the SRO dismissed the parent’s appeal as untimely. See Appeal No. 21-249 at 5.
On May 13, 2022, the District received a due process complaint which initiated IHRS Case No. 572820. In that due process complaint, the parent again sought an Order directing the removal of the District’s Director of Pupil Personnel Services from further involvement in the student’s CSE, claiming that she intimidated the student’s aide, and conspired to lie about the nature of the special education teacher’s alleged intoxication during the student’s pendency instruction during the fall of 2021. Following an August 24, 2022 pre-hearing conference, the parent’s due process complaint in IHRS Case No. 572870 was dismissed in a Decision & Order dated October 24, 2022. In the October 24, 2022 Decision & Order, I found that the parent was precluded from relitigating the issue of removal of the District’s Director of Pupil Personnel Services, as it had already been decided in IHRS Case No. 556183 (Ex. IHO-VI ex. A).
Thereafter, the parent appealed the October 24, 2022 Decision & Order in IHRS Case No. 572820 to the SRO. See N.Y. Educ. Law § 4404(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k). In a decision dated December 6, 2022, the SRO dismissed the parent’s appeal. See Appeal No. 22-147.
As the parent’s August 31, 2022 due process complaint in this matter, i.e., IHRS Case No. 578158, raises an identical legal issue that was raised and decided in IHRS Case No. 556183 and in IHRS Case No. 572870, i.e., legal authority to remove the District’s Director of Pupil Personnel Services, I find that re-litigation of that legal issue is barred by collateral estoppel.
I have considered the parent’s remaining claims and find that they are without merit.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS
HEREBY ORDERED THAT:
The District’s motion to dismiss the parent’s complaint in IHRS is GRANTED and the complaint is hereby DISMISSED.
Dated: December 14, 2022
/s/ Jeffrey J. Schiro
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
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 plan 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.
DOCUMENTATION ENTERED INTO THE HEARING RECORD
PARENT
None
SCHOOL DISTRICT
None
IMPARTIAL HEARING OFFICER
I. Due Process Complaint (IHRS ), rec’d 8/31/22, 4 pgs.
II. District’s Combined Verified Answer & Motion to Dismiss, 9/12/22, 19 pgs.
Ex. A – Prior Written Notice, 9/9/22, 3 pgs.
Ex. B – Decision & Order (IHRS Case No. 556183), 11/12/21, 15 pgs.
Ex. C – Decision & Order (IHRS Case No. 552466 & 552467), 8/13/21, 23 pgs.
III. Parent’s Affirmation in Opposition to Motion to Dismiss, undated, 16 pgs.
IV. Letter to parties from IHO Jeffrey J. Schiro, 10/4/22, 6 pgs.
V. Parent’s Supplementary Brief, undated, 6 pgs.
VI. District’s Reply Memorandum of Law in Support of Motion to Dismiss, 11/15/22, 10 pgs.
Ex. A – Decision & Order (IHRS Case No. 572820), 10/24/22, 10/24/22, 20 pgs.
V. Extension Order, 10/15/22, 1 pg.
VI. Extension Order, 11/14/22, 1 pg.
Footnotes
[1] References to the transcript of the pre-hearing conference are noted as “R.” References to exhibits admitted into the hearing record as evidence are noted as “Ex.” References to exhibits within exhibits are noted as “ex.”
[2] The briefing schedule was later extended at the parties’ request.
[3] Following my appointment to this case, the parties moved to extend the case compliance date in this matter twice in order to accommodate witness availability and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint and the District’s motion to dismiss. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (Exs. IHO-V, IHO-VI). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[4] Intellectual disability means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(7).
[5] See Application of a Student with a Disability, Appeal No. 22-147; Application of a Student with a Disability, Appeal No. 22-102; Application of a Student with a Disability, Appeal No. 22-010; Application of a Student with a Disability, Appeal No. 21-249; Application of a Student with a Disability, Appeal No. 21-181; Application of a Student with a Disability, Appeal No. 21-019; Application of a Student with a Disability, Appeal No. 20-135; Application of a Student with a Disability, Appeal No. 19-121; Application of a Student with a Disability, Appeal No. 19-021; Application of a Student with a Disability, Appeal No. 18-110; Application of a Student with a Disability, Appeal No. 18-075; Application of a Student with a Disability, Appeal No. 18-064; Application of a Student with a Disability, Appeal No. 17-079; Application of a Student with a Disability, Appeal No. 17-015; Application of a Student with a Disability, Appeal No. 16-040.
[6] In a Findings of Fact and Decision (“FOFD”) dated January 28, 2022 in IHRS Case No. 552797, I determined that the District offered the student a FAPE for the 2021/22 school year. The parent appealed the January 28, 2022 FOFD to the SRO, see N.Y. Educ. Law § 4404(2); 8 NYCRR § 200.5(k), who affirmed the January 28, 2022 FOFD in a decision dated March 11, 2022, see Appeal No. 22-010.
[7] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[8] Retaliation claims generally fall under the guise of 42 U.S.C. § 1983 (“Section 1983”) or Section 504 of the Rehabilitation Act of 1974 (“Section 504”), 29 U.S.C. § 794(a). As compensatory damages are not available in the administrative forum under the IDEA, neither an IHO nor an SRO has jurisdiction to award any remedy for a claim under Section 1983. See Taylor v. Vermont Dep't of Educ., 313 F.3d 768, 786 n.14 (2d Cir. 2002); Polera v. Board of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 483 (2d Cir. 2002); see also R.B. v. Bd. of Educ. of the City of New York, 99 F. Supp. 2d 411, 418 (S.D.N.Y. 2000). The parent’s due process complaint does not raise any Section 504 claims, and the scope of my appointment by the District does not include consideration of any such claims (Ex. IHO-I, IHO-IV). However, a similar retaliation claim arising under Section 504 and the Americans with Disabilities Act, 42 U.S.C. § 12101 et. seq., seeking similar relief was recently dismissed in federal court. See Killoran v. Westhampton Beach Sch. Dist., 21-CV-3264(JS)(SIL), 122 LRP 38416 (E.D.N.Y. Sept. 27, 2022).
[9] A similar application by the parent to remove the District’s then-Pupil Personnel Services Director was dismissed by the Commissioner of Education in 2018. See Application of a Student with a Disability (Westhampton Beach Union Free Sch. Dist.), 58 Ed. Dep’t Rep., Decision No. 17,452 (2018).