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Decision No. 12,868

Appeal of a CHILD WITH A HANDICAPPING CONDITION, by her parent, from action of the Board of Education of the Tully Central School District regarding class placement and tuition reimbursement.

Decision No. 12,868

(December 29, 1992)

Costello, Cooney & Fearon, attorneys for respondent, Paul G. Ferrara, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks reimbursement from the Board of Education of the Tully Central School District for the placement of his daughter in a private school after respondent refused his request to reassign her to a different kindergarten class. The appeal must be dismissed.

Petitioner's five year old daughter attended an Early Education Program in the North Syracuse Central School District during the 1991-92 school year. The Committee on Preschool Special Education (CPSE) for the North Syracuse Central School District identified petitioner's daughter as a child with a handicapping condition and classified her speech impaired. In April 1991, the Committee on Special Education (CSE) of the North Syracuse Central School District conducted an annual review and developed her individualized education program (IEP). In the spring of 1992, the CSE of the East Syracuse-Minoa (ESM) School District also assessed the child in anticipation of her enrollment in that district. However, some time in August, petitioner relocated to the Tully Central School District ("district") and enrolled his daughter there. The principal for respondent's elementary schools reviewed the child's IEP and other materials forwarded from the North Syracuse Central and ESM school districts and assigned petitioner's daughter to the kindergarten class with the lowest enrollment.

On her first day in kindergarten, on September 9, 1992, petitioner's daughter became anxious and would not eat lunch. After experiencing a similar level of anxiety on September 10 and 11, 1992, petitioner's daughter did not return to school. Thereafter, petitioner met with the principal to request that his daughter be reassigned to another kindergarten class stating that the teaching method used in the classroom was inappropriate. The principal denied petitioner's request based on his judgment that the child's three day exposure to a new classroom and teacher was insufficient to justify her reassignment. Petitioner met with the principal again on September 17, 1992 and, although the child's mother and the teacher were also present at that meeting, no agreement was reached on the teaching method to be employed. Petitioner met with the superintendent on September 21, 1992 and later that day presented his request for reassignment to respondent's board of education. Petitioner was informed by telephone on September 23, 1992, that his request was denied. Petitioner then withdrew his daughter from respondent's school and, on September 29, 1992, enrolled her in a private school which is not approved by the Commissioner of Education to provide special education services to children with handicapping conditions. Petitioner's daughter currently attends that private school where she also receives speech therapy from respondent. On October 23, 1992, petitioner commenced this appeal seeking reimbursement for tuition and fees for his daughter's placement at the private school.

Respondent contends that the appeal must be dismissed on procedural grounds since the petition was delivered to a school district employee who was unauthorized to accept service. Respondent also asserts that the appeal is untimely because the superintendent first received a copy of the petition on October 26, 1992, more than thirty days after petitioner was informed of respondent's decision denying petitioner's request. Respondent further contends that the petition fails to state a claim upon which relief can be granted.

Regarding respondent's procedural objections, the record indicates that service was effected on its district's business administrator who allegedly indicated to the process server that she was authorized to accept the paper. In any case, a petition involving a child with a handicapping condition will not be dismissed on procedural grounds, unless it can be demonstrated that respondent has been prejudiced (Application of a Child with a Handicapping Condition, 28 Ed Dept Rep 519). Although petitioner improperly served the petition on the business administrator rather than an individual designated under 8 NYCRR ''275.8(a) and 279.1 of the Commissioner's Regulations, there is no evidence that respondent was prejudiced by improper service (Matter of Moser, 23 Ed Dept Rep 153; Matter of Brandon, 22 id. 223; Matter of Silver, 19 id. 444). Consequently, I will not dismiss the petition on procedural grounds (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 137).

Regarding the merits, petitioner has the burden of demonstrating a clear right to the relief requested (Appeal of DiMicelli, 28 Ed Dept Rep 327; Appeal of Amoia, 28 id. 150). Petitioner contends that respondent's refusal to reassign his daughter to a different kindergarten teacher was improper and requests reimbursement for private school tuition and fees necessitated by respondent's refusal.

Education Law '1709 grants broad authority to boards of education to prescribe the course of study by which pupils shall be graded and classified, and to regulate the admission of pupils and their transfer from one class or department to another, as their scholarship warrants. In such cases, the Commissioner of Education will not substitute his judgment for that of a board of education absent evidence that the board has acted in an illegal, arbitrary or capricious manner (Appeal of Amoia, 28 Ed Dept Rep 150; Appeal of Bartowski, 25 id. 52; Matter of Brandon, supra; Matter of Boussios, 18 id. 590; Matter of Greene, 14 id. 380). The record reflects that the initial anxiety experienced by petitioner's daughter is not uncommon in the first days of school. Nonetheless, respondent's superintendent indicates that he offered to schedule weekly conferences with the child's parents and teacher to review her progress and to make adjustments, including reassignment, if no progress was observed after the first few weeks. Given the broad discretion given to school boards in making classroom assignments and the superintendent's flexible and open approach to petitioner's request, there is no basis to find respondent's actions arbitrary or unreasonable. Based on the record before me, therefore, petitioner has failed to show he is entitled to tuition reimbursement for his daughter's placement. Moreover, except in those limited circumstances described below, respondent board of education is not authorized to provide tuition reimbursement for petitioner's daughter to attend a private school because it would constitute an improper gift of public funds prohibited by Article VIII '1 of the State Constitution (Appeal of Storman, 26 Ed Dept Rep 454).

Although not clearly stated, to the extent petitioner seeks reimbursement for the unilateral placement of his daughter as a child with a handicapping condition, he may be entitled to such relief if he establishes that the placement recommended by respondent's CSE was inappropriate, the parent's placement is appropriate, and equitable considerations support a claim for reimbursement (Burlington School Committee, Town of Burlington, Massachusetts, et al. v. Dept. of Ed., Commonwealth of Massachusetts, et al., 471 U.S. 359, 105 S. Ct. 1996 (1985); Application of a Child with a Handicapping Condition, 29 Ed Dept Rep 116; Application of a Child with a Handicapping Condition, 28 id. 473; Application of a Handicapped Child, 25 id. 491; Application of a Handicapped Child, 24 id. 450). As a general rule, the law requires the exhaustion of administrative remedies when a parent seeks to challenge a proposed placement (Education Law 4404[1]; 8 NYCRR 200.5[c]; Application of a Child with a Handicapping Condition, 29 Ed Dept Rep 394; Matter of a Handicapped Child, 21 id. 369; Matter of a Handicapped Child, 20 id. 82). In cases seeking reimbursement, the matter must be addressed in the first instance at an impartial hearing, which may then be reviewed in an appeal to the State Review Officer pursuant to Education Law '4404 and 8 NYCRR Part 279 (see, Semel v Ambach, 118 AD2d 385 (3d Dept 1986). In the event the hearing officer finds the district's recommendation inappropriate and the parent's unilateral placement appropriate, the parent may have a basis for claiming tuition reimbursement. Since petitioner failed to exhaust administrative remedies because he never went to an impartial hearing, the case must be dismissed.

THE APPEAL IS DISMISSED.

END OF FILE