Decision No. 13,378

(March 23, 1995)

Kroll & Blachor, Esqs., attorneys for petitioner, Martin N. Kroll, Esq., of counsel

Guercio & Guercio, Esqs., attorneys for respondent, Lynmarie CotelaSchuman, Esq., of

counsel

SOBOL, Commissioner.--Petitioner, Hebrew Academy of Nassau County (HANC), challenges the decision of the Board of Education of the Plainview-Old Bethpage Central School District ("respondent") to change the location where special education and related services are provided to students with disabilities who attend HANC. The appeal must be dismissed.

Petitioner operates a private parochial school at 25 Country Drive, Plainview, New York. Petitioner purchased that facility from respondent in June 1994. From April 1981 through June 1994, petitioner leased a portion of that building. During the period of the lease, respondent provided special education services to HANC students in the portion of the building occupied by respondent that was not included in the lease.

Following HANC's purchase of the facility at 25 Country Drive, respondent decided on September 12, 1994 that it lacked authority to provide special educational services at that site, since the entire facility had become a parochial school. Petitioner was notified by letter dated September 20, 1994 of respondent's decision that special education services would thereafter be moved to sites in nearby public school facilities. Speech services are being provided to six HANC students at a public elementary school within two miles of the parochial school. In addition, a school psychologist employed by respondent provides counseling, crisis intervention and testing at a public middle school.

Petitioner seeks an order overturning respondent's decision to provide special education services to HANC students in public schools rather than at the parochial school. In support of its request, HANC cites Education Law '2217. However, petitioner's reliance on that statutory provision is misplaced, since '2217 pertains only to official acts of a district superintendent, and no such acts are alleged in this appeal. Accordingly, petitioner has failed to state a claim under Education Law '2217.

Respondent also maintains that this matter must be dismissed since HANC lacks standing to challenge the delivery of special education services to individual students. Based upon the record, I must agree. To be entitled to relief under Education Law '310, petitioner must demonstrate a personal injury to civil, personal or property rights suffered as a result of the acts complained of (Appeal of Chesbrough, 32 Ed Dept Rep 647; Appeal of DePasquale, 30 id. 361). There is no evidence before me indicating that petitioner has suffered any harm as a result of respondent's decision regarding delivery of special education services to HANC students. Therefore, HANC is not an aggrieved party within the legal meaning of that term (Matter of Four Handicapped Children, 21 Ed Dept Rep 130), and has no standing under '310 to bring this appeal.

Moreover, the right to appeal a decision regarding delivery of special education and related services to a child with a disability is conferred exclusively upon the child's parents or guardians, pursuant to Education Law '4404. It is those individuals and the child, not the school the child attends, whose rights are affected by the decision challenged here. Therefore, such persons, on behalf of the child, may assert the right to challenge respondent's decision through an impartial hearing and an appeal to the State Review Officer, pursuant to Education Law '4404.

THE APPEAL IS DISMISSED.

END OF FILE

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