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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]
SCHOOL DISTRICT,)
)
Respondent.)
DECISION & ORDER
For the Student:
[REDACTED], Esq., Parent, pro se For the School District:
[REDACTED], Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED AT DECEMBER 14, 2022 PHC
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 October 14, 2022, the school district received a due process complaint which initiated this matter (i.e., IHRS ). In that complaint, the parent asserts that the student’s right to a free appropriate public education (“FAPE”) under the IDEA was violated when the school district’s director of pupil personnel services authored a March 5, 2021 letter to a consultant retained by the school district to provide services to the student. The parent seeks an Order directing the removal of the school district’s director of pupil personnel services as an active member of the school district’s Committee on Special Education (the “CSE”) (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 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 October 14, 2022, the Board of Education of the [REDACTED] 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 October 24, 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).
An on-the-record pre-hearing conference with the parties was thereafter held on December 14, 2022 to clarify the hearing issues, to discuss consolidation of this case with other then-pending matters involving the same parties, and to address the District’s motion to dismiss. See 8 NYCRR § 200.5(j)(3)(xi).[2]
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., October 14, 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 exs. C at 6, E at 6).[3] 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 [REDACTED], 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 (Ex. IHO-II ex. C at 7). See Appeal No. 22-010 at 10 n. 13.
The student in this case has been the subject of seventeen prior State-level administrative appeals.[4] Accordingly, the parties’ familiarity with the student’s educational history is presumed and will not be restated here.
The due process complaint here centers on a March 5, 2021 letter that the District’s Director of Pupil Personnel Services, forwarded to a private consultant (Exs. IHO-I, IHO-II at ¶¶ 9, 21 & ex. B). The private consultant has been retained by the District to serve as the student’s transition coordinator and to provide parent training. The private consultant also supervises her employee, who serves as the student’s educational consultant (Ex. IHO-II at ¶ 9 & ex. C at 12). The March 5, 2021 letter was transmitted in the midst of a then-ongoing impartial hearing in IHRS Case No. 549825 which concerned an alleged denial of FAPE during the 2020/21 school year (Ex. IHO-II exs. B, C, D).
In the March 5, 2021 letter, labeled “personal and confidential,” the District’s Director of Pupil Personnel Services objected to a February 26, 2021 proposal by the private consultant that her employee “take on the role of a special educator” for the student. The District’s Director of Pupil Personnel Services asserted that the private consultant’s proposal was beyond the scope of her consulting agreement with the District and “more reflective of a parent advocate” advancing “the parents’ desire to have their son educated within [the District’s] high school building” (Ex. IHO-II ex. B).
As the parent acknowledges in his due process complaint, this is not the first time that the March 5, 2021 letter has been the subject of an impartial due process hearing (Ex. IHO-I). On June 2, 2021, the District received a due process complaint in IHRS No. 552466 in which the parent sought declaratory relief that the student’s rights under the IDEA and Section 504 were violated when the District’s Director of Pupil Personnel Services sent her March 5, 2021 letter to the private consultant (Ex. IHO-II at ¶ 19 & ex. F). The District moved to dismiss the complaint in IHRS No. 552466 on various grounds. In a Decision and Order dated August 13, 2021, the District’s motion to dismiss the parent’s complaint in IHRS No. 552466 was granted on sufficiency grounds (Ex. IHO-II at ¶ 22 & ex. E).
On August 30, 2021, the District received a due process complaint in IHRS No. 556183 which, like the due process complaint in this matter, i.e., IHRS No. 585748, attempted to cure the pleading defect for which the parent’s due process complaint in IHRS No. 552466 was dismissed as insufficient (Ex. IHO-II at ¶ 26 & ex. H). The due process complaint in IHRS No. 556183 alleged:
That the March 5, 2021 “correspondence profiles as an act of ‘retaliation,” as contemplated by the IDEA. Specifically,... the content of the correspondence reveals that the defendant district was attempting to alternatively bully and/or pressure [the private consultant], and by extension [her employee], to change their proposed educational suggestions and/or recommendations concerning the [student], under threat of discontinued employment within the defendant district” (Ex. IHO-II ex. H).
The District moved to dismiss the parent’s complaint in IHRS No. 556183 on various grounds. In a Decision & Order dated November 12, 2021, the District’s motion to dismiss was granted due to a lack of standing. While I found that the District’s Director of Pupil Services’ March 5, 2021 letter to the private consultant did not subvert the integrity of the then-underlying due process processing in IHRS No. 549825, even if the allegations contained in the parent’s complaint were true, I found that they did 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 (Ex. IHO-II at ¶¶ 28-30 & ex. G at 11-13).[5]
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.
As relief in this matter, i.e., IHRS No. 585748, the parent seeks an Order directing the District to remove of the District’s Director of Pupil Personnel Services as the student’s CSE Chairperson (Ex. IHO-I). This is also not the first time that the parent has sought such relief.
In the November 12, 2021 Decision & Order in IHRS No. 556183, 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. G).[6] See Appeal No. 21-249 at 3.
On May 13, 2022, the District received a due process complaint in IHRS 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 had intimidated the student’s aide, and conspired to lie about the special education teacher’s alleged intoxication during the student’s pendency instruction in the fall of 2021. Following an August 24, 2022 pre-hearing conference, the parent’s due process complaint in IHRS 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 No. 556183.
Thereafter, the parent appealed the October 24, 2022 Decision & Order in IHRS 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.
On August 31, 2022, the District received a due process complaint in IHRS No. 578158. 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 for having engaged in alleged coercive, retaliatory, and/or interfering acts upon the student’s related service providers. Following an October 10, 2022 pre-hearing conference, the parent’s due process complaint in IHRS No. 578158 was dismissed in a Decision & Order dated December 14, 2022. In the December 14, 2022 Decision & Order, I concluded that the parent’s August 31, 2022 due process complaint in IHRS Case No. 578158 raised an identical legal issue which had been previously raised and decided in IHRS No. 556183 and in IHRS No. 572870, i.e., legal authority to remove the District’s Director of Pupil Personnel Services, and that re-litigation of that legal issue was barred by collateral estoppel.
Thereafter, the parent appealed the December 14, 2022 Decision & Order in IHRS No. 578158 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 20, 2023, the SRO dismissed the parent’s appeal. See Appeal No. 22-168.
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 it fails to state a claim upon which relief can be granted. The Second Circuit does not recognize IDEA retaliation claims. The parent lacks standing to assert IDEA-based retaliation claims on behalf of the private consultant and her employee. The parent’s claims are barred by res judicata and collateral estoppel. Removal of the District’s Director of Pupil Personnel Services is beyond the jurisdictional limits of impartial due process hearings under Federal and State law (Exs. IHO-II, IHO-IV).
B. The Parent The District’s motion to dismiss should be denied in its entirety. The District’s Director of Pupil Personnel Services retaliated against the private consultant and her company and/or interfered with the scope of services she provided to the student. The District’s Director of Pupil Personnel Services’ retaliation subverted the integrity of a past due process hearing. There is no controlling legal authority within the Second Circuit which prevents IDEA-based retaliation claims from being heard. The IHO has the authority to remove a CSE member for committing acts violative of the IDEA (Exs. IHO-I, IHO-III).
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 October 24, 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 December 14, 2022, and until after the parties were given the opportunity to submit 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). 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.
C. Res Judicata/Collateral Estoppel
Among other grounds, the District has moved to dismiss the parent’s complaint as barred by res judicata and/or collateral estoppel (Ex. IHO-II). 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 res judicata "precludes parties from relitigating issues that were or could have been raised in a prior proceeding." K.B., 2012 WL 234392, at *4; see Perez v. Danbury Hosp., 347 F.3d 419, 426 (2d Cir. 2003); Murphy v. Gallagher, 761 F.2d 878, 879 (2d Cir. 1985); Grenon, 2006 WL 3751450, at *6. Res judicata applies when: (1) the prior proceeding involved an adjudication on the merits; (2) the prior proceeding involved the same parties or those in privity with the parties; and (3) the claims alleged in the subsequent action were, or could have been, raised in the prior proceeding. See K.B., 2012 WL 234392, at *4; Grenon, 2006 WL 3751450, at *6. Claims that could have been raised are described as those that "emerge from the same 'nucleus of operative fact' as any claim actually asserted" in the prior adjudication. Malcolm v. Honeoye Falls Lima Cent. Sch. Dist., 517 Fed. App'x 11, 12 (2d Cir. Apr. 1, 2013).
The related 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).
The District’s motion to dismiss the parent’s due process complaint, as barred by res judicata and/or collateral estoppel, is granted. While it is true that the first time the parent raised his retaliation claim concerning the District’s Director of Pupil Personnel Services’ March 5, 2021 letter to the private consultant in IHRS No. 552466, that complaint was dismiss on sufficiency grounds (Ex. IHO-II exs. E, F), however, the merits of the parent’s retaliation claim was previously adjudicated in IHRS No. 556183 (Ex. IHO-II ex. G). The due process hearing in IHRS No. 556183 involved the same parties that are present in this matter, i.e., IHRS No. 585748, and the claims raised in this matter were previously raised in IHRS No. 556183 (Ex. IHO-II at ¶¶ 28-30 & ex. G at 11-13).
Similarly, as the relief sought in this matter raises an identical legal issue that was raised and decided in IHRS No. 556183, IHRS Case No. 572820, and IHRS No. 578158, 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: March 27, 2023
____________________
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 No. 585748), rec’d 10/14/22, 2 pgs.
II. District’s Combined Verified Answer & Motion to Dismiss, 10/24/22, 27 pgs.
Ex. A – Due Process Complaint (IHRS No. 585748) w/ inferred paragraph nos., undated,
2 pgs.
Ex. B – Letter to Private Consultant from District’s Director of PPS, 3/5/21, 2 pgs.
Ex. C – Findings of Fact & Decision (IHRS No. 549825), 8/13/21, 33 pgs.
Ex. D – Parent’s Post-Hearing Brief (IHRS No. 549825), 8/4/21, 33 pgs.
Ex. E – Decision & Order (IHRS Nos. 552466 & 552467), 8/13/21, 23 pgs.
Ex. F – Due Process Complaint (IHRS No. 552466), rec’d 6/2/21, 2 pgs.
Ex. G – Decision & Order (IHRS No. 556183), 11/12/21, 15 pgs.
Ex. H – Due Process Complaint (IHRS No. 556183), rec’d 8/30/21, 3 pgs.
Ex. I – Federal Complaint, 11/7/21, 12 pgs.
III. Parent’s Response to District’s Motion, 2/20/23, 1 pg.
IV. District’s Reply in Support of Motion to Dismiss, 2/20/23, 1 pg.
V. Extension Order, 11/28/22, 1 pg.
VI. Extension Order, 12/28/22, 1 pg.
VII. Extension Order, 1/27/23, 1 pg.
VIII. Extension Order, 2/26/23, 1 pg.
XIX Order on Consolidation (IHRS Nos. 585748 & 580008), 12/15/22, 5 pgs.
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] Pursuant to a briefing schedule set at the December 14, 2022 pre-hearing conference, the parent’s papers in opposition to the motion were to be served on or before January 27, 2023 and the District’s reply papers were to be served on or before February 6, 2023 (R. 8-9). The parent, however, did not comply with the briefing schedule set at the pre-hearing conference. When contacted about that omission, the parent initially stated in a February 20, 2023 email that he did “not feel that a formal ‘response’ is necessary,” but then proceeded to offer a response to the District’s motion (Ex. IHO-III). The District offered a short reply via email the same day (Ex. IHO-IV).
[3] 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).
[4] See Application of a Student with a Disability, Appeal No. 22-163; Application of a Student with a Disability, Appeal No. 22-168; 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.
[5] 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 dismissed in federal court (Ex. IHO-II at ¶¶ 36-39 & ex. I). See Killoran v. Westhampton Beach Sch. Dist., 21-CV-3264(JS)(SIL), 122 LRP 38416 (E.D.N.Y. Sept. 27, 2022).
[6] 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).
[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.