STATE OF NEW YORK
OFFICE OF STATE REVIEW
25-248
Application of a STUDENT WITH A DISABILITY, by his parents, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the Dryden Central School District
I. Introduction
This 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. Petitioners (the parents) appeal from a decision of an impartial hearing officer (IHO) which dismissed their due process complaint notices. The appeal must be dismissed.
II. Overview—Administrative Procedures
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, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 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 (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 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" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an IHO (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An 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 business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[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 45 days after the expiration period or adjusted period for the resolution process (34 CFR 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 (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]).
A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (SRO) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4). The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5). The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]). The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).
III. Facts and Procedural History
Given the procedural posture of the matter—namely that it was dismissed with prejudice prior to an impartial hearing—there was no development of an evidentiary record regarding the student through testimony or exhibits entered into evidence. Accordingly, the description of the facts is limited to the procedural history, including the parents' filing of two due process complaint notices and the IHO's dismissal of the due process complaint notices with prejudice.
A. Due Process Complaint Notices
In a due process complaint notice dated March 5, 2025, the parents[1] alleged that the district denied the student a free appropriate public education (FAPE) (see Mar. 5, 2025 Due Proc. Compl. Not.). The parents asserted that the district failed to provide them with proper notice of a March 5, 2025 CSE meeting (id. at p. 2). In addition, the parents contended that, although they notified the district that they could not attend, the district demanded the CSE be held on that date, giving the parents only five hours of notice that the district intended to proceed with the meeting (id.). The parents alleged that the district used its "communications ban" to ignore the parents' responses, held the CSE meeting without parental participation, and failed to schedule the meeting at a mutually agreed upon location or time and date (id.). The parents argued the district also failed to provide documentation to allow them to participate in the student's education (id.). The parents stated that they d[id] not consent to any change in the student's IEPs or statements made without them being present (id.). The parents requested that the CSE be ordered to hold a meeting only when the parents are available, in person, and that the district be prevented from using the communication ban for matters related to the CSE (id.). Moreover, the parent requested that the district be ordered to remove all bars to their participation in the student's education (id.).
In a second due process complaint notice dated March 11, 2025, the parents made several allegations regarding altercations between the student and another student, which the parents alleged resulted in the improper suspensions of the student (see Mar. 11, 2025 Due Proc. Compl. Not.). The parents argued that the student was improperly treated and punished by the district and that the district failed to provide the student with "make up services for his suspensions" (id.). The parents contended that the district superintendent improperly handled threats made against the student and lied about statements made by the student's father (id.). The parents requested that the suspensions be removed from the student's educational record (id.). In addition, the parents requested that the district's board of education be required to address issues with the parent without involving the district superintendent and that the board investigate the district superintendent (id.).
B. Impartial Hearing Officer Decision
On March 18, 2025, an impartial hearing convened to address to address the parents' March 5, 2025 due process complaint notice (see Tr. pp. 1-60).[2] In a decision dated March 27, 2025, the IHO dismissed the parents' due process complaint notices (IHO Decision at pp. 4, 7).
With respect to the March 5, 2025 due process complaint notice, the IHO found that the allegations were barred by collateral estoppel and that, in any event, the parent did not allege a denial of a FAPE to the student (IHO Decision at pp. 4-6). The IHO noted that he presided over a prior dispute between the parties that resulted in a decision, dated February 22, 2025, in which he discussed the communication protocol between the parties and that, in the March 5, 2025 due process complaint notice, the parents did not allege new facts as compared to the prior matter (id. at p. 4). Thus, because the IHO found that the parents already had the opportunity to litigate this matter and failed to timely appeal the adverse ruling, the IHO determined the parents' claims set forth in the March 5, 2025 due process complaint notice were barred by collateral estoppel (id. at p. 6). The IHO also noted that at a March 26, 2025 prehearing conference, "the [p]arent vividly demonstrated" why the communications protocol was needed, as "the father was abrasive, yelled, [and] used derogatory language" toward the IHO and the district representative (id. at pp. 4, 6). The IHO noted that the "father has demonstrated, again and again, that he is not capable of marshalling his emotions or conducting himself in an appropriate or professional manner" (id. at pp. 4-5). The IHO added that, "[s]imply put, the father is extremely volatile, angry, disruptive, loud and often makes all manner of threats" and that "[The IHO] cannot fathom any affirmative reason to subject District or CSE personnel to the father's outbursts and tirades" (id. at p. 6 [emphasis in the original]).
The IHO also found that the March 5, 2025 due process complaint notice made "no reference whatsoever to any matters relating to the identification, evaluation or educational placement of the Student" (IHO Decision at p. 5). Instead, the IHO indicated that the parents' "grievances rest[ed] entirely on the District's 'restrictions'" placed on their ability to communicate with the school (id. at pp. 5-6). The IHO held that the due process complaint notice did not reference a "causal relationship" between these restrictions on communication and any impact upon the student "let alone an adverse one or even a denial of FAPE" (id. at p. 6). Therefore, the IHO found that he lacked "subject matter jurisdiction to issue any orders with respect to the communications protocol and/or the in-person meetings that the Parent refer[red] to" in the due process complaint notice (id.).
Regarding the March 11, 2025 due process complaint notice, the IHO found that he did not have the authority to expunge a suspension from a student's educational record (IHO Decision at p. 5). The IHO noted that the parents' request related to the disciplinary process inclusive of the expunging of educational records (id. at pp. 6-7). The IHO stated that such a request must first be brought in accordance with the appeals process set forth in the district's code of conduct and/or by the Commission of Education (id.).
IV. Appeal for State-Level Review
The parents appeal, arguing that the IHO erred in dismissing their due process complaint notices. The parents argue that the district did not submit a motion to dismiss either due process complaint notice. The parents contend that, because the district did not file a motion to dismiss within 15 days of receiving their due process complaint notices in the manner contemplated by State regulation, the IHO did not have the authority to dismiss their due process complaint notices.
With respect to the March 5, 2025 due process complaint notice, the parents assert that their complaint raised claims within the IHO's jurisdiction including that the district denied them the ability to attend the March 2025 CSE meeting, which denied them the ability to participate in the CSE process and, as a result, harmed the student. The parents also argue that the district never attempted to reschedule the meeting.[3] The parents assert that their claims related to the specific CSE meeting and did not duplicate the parents' claims that were adjudicated in the prior matter. The parents contend that collateral estoppel does not apply because they could not have complained about the March 2025 CSE meeting previously. Finally, the parents assert that they were seeking more than a change to the communication ban.
Pertaining to the student's educational records, the parents argue that the IHO erred. The parents assert that they had the right to dispute or at the "very least force notes be added to any file or record to indicate their disagreement and explanation."
The parents allege that the IHO "holds a bias" against the family and was illegally assigned to the matter, outside of the proper process for assigning IHOs. The parents contend that the IHO and the district refused to provide the parent with transcripts and that the district's attorney admitted she did not forward all of the parents' communications to the district staff. The parents request that the impartial hearing be reopened with a new IHO.
The district did not serve or file answer to the parents' request for review.
V. Applicable Standards
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, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generallyForest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).
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 (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; 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]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[4]
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 R.E., 694 F.3d at 184-85).
VI. Discussion – Service of Pleadings
As a threshold matter, it must be determined whether the appeal should be dismissed due to improper service of the request for review.
An appeal from an IHO's decision to an SRO—whether the appeal is by a district or a parent—must be initiated by timely personal service of a verified request for review and other supporting documents, if any, upon respondent (8 NYCRR 279.4[b], [c]). Personal service on a school district is made "by delivering a copy thereof to the district clerk, to a trustee or member of the board of education of such school district, to the superintendent of schools, or to a person who has been designated by the board of education to accept service" (8 NYCRR 279.4[b]).
Generally, the failure to comply with the practice requirements of Part 279 of the State regulations, including the failure to properly serve an initiating pleading in a timely manner, may result in the rejection of the submitted documents or the dismissal of a request for review by an SRO (8 NYCRR 279.8[a]; 279.13; see B.C. v. Pine Plains Cent. Sch. Dist., 971 F. Supp. 2d 356, 365-66 [S.D.N.Y. Sept. 6, 2013] [upholding an SRO's dismissal of a parent's appeal where, among other procedural deficiencies, the amended petition was not personally served upon the district]; Application of a Student with a Disability, Appeal No. 16-015 [dismissing a parent's appeal for failure to effectuate proper personal service of the petition upon the district where the parent served a district employee not authorized to accept service]; Application of a Child with a Disability, Appeal No. 06-117 [dismissing a parent's appeal for failure to effectuate proper personal service in a timely manner where the parent served a CSE chairperson and, thereafter, served the superintendent but not until after the time permitted by State regulation expired]; see also Application of a Student with a Disability, Appeal No. 12-042 [dismissing parent's appeal for failure to properly effectuate service of the petition in a timely manner where the parent served the district's counsel by overnight mail]; Application of a Student with a Disability, Appeal No. 11-013 [dismissing parent's appeal for failure to timely effectuate personal service of petition upon the district]; Application of a Student with a Disability, Appeal No. 11-012 [dismissing parents' appeal for failure to timely effectuate personal service of petition upon the district]; Application of a Student with a Disability, Appeal No. 09-099 [dismissing parents' appeal for failure to timely effectuate personal service of the petition upon the district]; Application of the Dep't of Educ., Appeal No. 05-082 [dismissing a district's appeal for failure to personally serve the petition upon the parent where the district served the parent's former counsel by overnight mail]; Application of the Dep't of Educ., Appeal No. 05-060 [dismissing a district's appeal for failing to timely file a hearing record on appeal]; Application of a Child with a Disability, Appeal No. 05-045 [dismissing a parent's appeal for, among other reasons, failure to effectuate proper personal service where the parent served a school psychologist]; Application of the Dep't of Educ., Appeal No. 01-048 [dismissing a district's appeal for failure to personally serve the petition upon the parent where the district served the parent by facsimile]).
The parents, who are not represented, filed a notice of intention to seek review with case information statement and a notice of request for review, request for review, and affidavit of verification, accompanied by several exhibits, with the Office of State Review. The parents also filed two affidavits of personal service (see May 2, 2025 Aff. of Serv.; Apr. 17, 2025 Aff. of Serv.). The first affidavit of personal service indicates that the mother served a "notice of intent and notice of appeal" on April 17, 2025 at the district office; the affidavit provides the first name of an individual served and states her title is "treasure[r]" (Apr. 17, 2025 Aff. of Serv.).[5], [6] The second affidavit of personal service indicates that the mother served a request for review on May 2, 2025 at the district's office; the affidavit provides the first name of a different individual than the first affidavit and states her title is "register" (May 2, 2025 Aff. of Serv.).
Given the descriptions in the parents' affidavits of service, the parents did not properly serve the district with the request for review in the manner required by State regulation, as personal service on the school district was not made to the district clerk, a trustee, the superintendent, or person designated by the board of education (see 8 NYCRR 279.4[b]; Application of a Student with a Disability, Appeal No. 20-020; Application of a Student with a Disability, Appeal No. 12-077; see also Appeal of Villanueva, 49 Ed. Dep't Rep. 54, Decision No. 15,956 [personal service under similar regulatory provisions upon unidentified receptionist found improper]; Appeal of Baker, 47 Ed. Dep't Rep. 280, Decision No. 15,696 [service upon the executive secretary to the superintendent found under similar regulatory provisions improper]).
While State regulations do not preclude a school district and a parent from agreeing to "waive" personal service of the request for review and it is generally permitted for parties to agree to service by an alternate delivery method, there is no indication in this instance that the district agreed to accept service by delivery of the request for review and supporting documents to the individual identified in the parents' May 2025 affidavit of service. Under these circumstances, given the deficiencies in compliance with Part 279 and the defect in service on the district, the appeal must be dismissed.[7]
While this matter is dismissed on procedural grounds, I will briefly discuss some issues raised in the parents' appeal.
With respect to the parents' allegations directed at the May 2024 CSE meeting, the IDEA sets forth procedural safeguards that include providing parents an opportunity "to participate in meetings with respect to the identification, evaluation, and educational placement of the child" (20 U.S.C. § 1415[b][1]). Federal and State regulations governing parental participation require that school districts take steps to ensure that parents are present at their child's IEP meetings or are afforded the opportunity to participate, including: notifying the parent prior to the meeting, scheduling the meeting at a mutually agreed upon time and place, and "[i]f neither parent can attend an [CSE] meeting, the public agency must use other methods to ensure parent participation, including individual or conference telephone calls" (34 CFR 300.322; 8 NYCRR 200.5[d]). A district may conduct a CSE meeting without a parent in attendance if it is unable to convince the parents that they should attend; however, in such instances, the district is required to maintain detailed records of its attempts to ensure the parents' involvement and its attempts to arrange a mutually agreed upon time and place for the meeting (34 CFR 300.322[d]; 8 NYCRR 200.5[d][3], [4]).
Here, the parent offers additional evidence pertaining to the scheduling of a CSE meeting for the student (see SRO Exs. 1-7). It appears that on January 24, 2025, the district sent notice scheduling an in-person CSE meeting for the student for Wednesday, March 5, 2025, at 1:41 pm to 2:45 pm at the district office conference room with a "virtual link" available for remote attendance (SRO Exs. 1-2). The parents responded to the district, with the mother stating that she was not available for a CSE meeting during the day on Mondays, Wednesdays, and Fridays and that a meeting after 4:00 pm on a Friday would be best, and the father indicating that he was only available on Fridays after 4:00 pm (see SRO Exs. 1; 2). The district responded to the parents stating that it had to "abide by contractual hours" and, therefore, could only schedule a meeting with a start time falling between 8:00 am and 2:00 pm, but offered to schedule a meeting Tuesday or Thursday "to better meet [the mother's] schedule" (SRO Exs. 3 at p. 1; 4 at p. 1). The documents submitted by the parents do not include a response to the district's offer; however, on the morning of the scheduled CSE meeting, the mother informed the district that it had to "reschedule and have the meeting on a Friday" (SRO Ex. 6). On March 6, 2025, the district noted that it had not received a response to its earlier email offering to reschedule the meeting but that the meeting had occurred, and the student attended and "provided input regarding his programming and advocated for himself" (SRO Ex. 7). At that time, the district offered to resolve the parents' due process complaint notice by reconvening the CSE on a Friday between 8:00 am and 2:00 pm (id.).
The foregoing exchanges demonstrate that both parties approached the scheduling of the CSE meeting with a degree of inflexibility. However, with respect to the hours offered by the district, the U.S. Department of Education's Office of Special Education Programs (OSEP) has indicated that it is not unreasonable for a school district to schedule CSE meetings during school hours when personnel can attend and that, while a district should be flexible to accommodate reasonable requests from parents for meetings outside of such hours, if a meeting time that accommodates all parties needs cannot be identified, a district must take other steps to ensure parent participation such as by allowing attendance via telephone or videoconferencing (Letter to Thomas, 51 IDELR 224 [OSEP 2008] [noting that provisions in the IDEA for parent participation in CSE meetings do not restrict districts from entering into union contracts specifying that staff will only attend meetings during regular working hour]; Letter to Anonymous, 18 IDELR 1303 [OSEP 1992] [noting a school district would be obligated to make a good faith effort to reach an agreement with the parents concerning the scheduling of IEP meetings and to determine a reasonably convenient time and place for conducting hearings but, in doing so, would not have to disregard its own scheduling needs]; cf. New Britain Bd. of Educ. v. New Britain Federation of Teachers, Local 871, 754 F.Supp.2d 407 [D. Conn. Nov. 17, 2010] [discussing tensions between class size provisions in a collective bargaining agreement and LRE provision of the IDEA but finding that, at that juncture, claims that the provisions conflicted were speculative]). Here, consistent with the regulations the district allowed an "other method" of attendance to further accommodate parent participation, namely virtual attendance and also offered to reschedule on days that the mother could make herself available (34 CFR 300.322[c]; 300.328; 8 NYCRR 200.5[d][1][iii]; [7]). Ultimately, even if the IHO reached the merits, the parents would not be entitled to the relief sought in their due process complaint notice; namely, that the district "[h]old a meeting ONLY when the parents are[] available" and "ONLY hold meetings IN PERSON" (Mar. 5, 2025 Due Process Compl. Not. at p. 2 [emphasis in the original]). To the contrary, the case law on this subject emphasizes the requirement of mutuality in the time for holding a CSE meeting (B.H. v. Joliet Sch. Dist. No. 86, 2010 WL 1177447, at *8 [N.D. Ill. Mar. 19, 2010] [noting that "[t]he IHO correctly found that the concept of mutual agreement does not encompass one party's unilateral insistence that an IEP meeting be held at a particular time, especially when that time is after school hours"]). Instead, going forward, both parties are urged to yield to reasonableness and commit to engaging in the collaborative process envisioned by the IDEA (see Schaffer v. Weast, 546 U.S. 49, 53 [2005] [noting that the "core of the statute" is the collaborative process between parents and schools, primarily through the IEP process]; Cerra, 427 F.3d at 192-93).
As a final note, the IHO correctly determined that he did not have jurisdiction to grant the parents' request for expungement of the student's suspensions. As the IHO noted, the parent's request, which related to the disciplinary process, must first be brought according to the appeals process set forth in the district's code of conduct and/or properly appealed to the Commissioner of Education (see Educ. Law § 310; 34 CFR 99.22, 300.621).[8],[9]
VII. Conclusion
In accordance with the discussion above, I find that the parents' appeal must be dismissed for failure to properly initiate the appeal.
THE APPEAL IS DISMISSED.
Footnotes
[1] The March 5, 2025 due process complaint was signed by the student's father (Mar. 5, 2025 Due Proc. Compl. Not. at p. 3). However, the March 11, 2025 due process complaint notice was signed by the student's mother (Mar. 11, 2025 Due Proc. Compl. Not. at p. 3). For purposes of this decision, the parents are referred to collectively except where relevant to the context.
[2] The hearing record does not include a formal decision by which the IHO consolidated the parents' due process complaint notices. During the impartial hearing held on March 18, 2025, the IHO noted that a second due process complaint notice had been filed but that, at that time, he had not yet been assigned to hear that matter (see Tr. p. 4). However, in his final decision, the IHO addressed both due process complaint notices (IHO Decision at p. 7).
[3] The parents offer additional evidence with the request for review to support this claim (see SRO Exs. 1-7).
[4] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 580 U.S. at 402).
[5] Each request for review must contain a notice information the respondent of the need to appear and answer allegations in a request for review (8 NYCRR 279.3). In this matter, the notice of intention to seek review and case information statement, as well as the notice of request for review, are dated April 16, 2025, whereas the request for review is dated May 1, 2025. Given the dates and the statements in the April 2025 affidavit of service, it appears that the notice of request for review was served with the notice of intention to seek review, rather than with the request for review.
[6] The address provided on the affidavit is the same address listed on the district website.
[7] The district did not serve or file an answer but did submit two letters to the Office of State Review referencing alleged deficiencies in the parents' appeal. In a letter from the Office of State Review to the parties, the district was directed to review State regulation providing that a respondent may serve an answer or answer with cross-appeal to respond to a request for review, which must thereafter be filed with the Office of State Review (see 8 NYCRR 279.5[a], [c], [e]). The district is reminded that it should not attempt to litigate an appeal in correspondence and, instead, must serve and file a pleading in order to raise procedural defenses. Here, the district's letters have not been considered. However, for the independent grounds stated herein, the parents' appeal is dismissed.
[8] An SRO does not have jurisdiction to review a disciplinary proceeding pursuant to Education Law § 3214, such appeals are submitted to the Commissioner of Education in accordance with Education Law § 310.
[9] The Commissioner has addressed claims regarding expungement of records of suspension in cases where a student's suspension was annulled and denied requests for expungement when the suspensions were upheld (see Appeal of L.O., 62 Ed. Dept. Rep. 18,267; Appeal of a Student with a Disability, 58 Ed. Dept. Rep. 17,503; Appeal of K.M., 42 Ed. Dept. Rep. 14,699).