Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Fayetteville-Manlius Central School District regarding educational placement.

Decision No. 17,025

(January 17, 2017)

Ferrara Fiorenza PC, attorneys for respondent, Jennifer E. Mathews, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from action of the Board of Education of the Fayetteville-Manlius Central School District (“respondent”) regarding her son’s educational placement.  The appeal must be dismissed.

Petitioners have two children who, until August 2015, were both enrolled in respondent’s district.  One of the children (the “student”) received special education services from respondent’s district pursuant to the federal Individuals with Disabilities Education Act (“IDEA”). 

 On May 21, 2015, the district’s committee on special education (“CSE”) convened to develop the student’s individualized education program (“IEP”) for the 2015-2016 school year.  Petitioners disagreed with the CSE’s recommendations.  Respondent adopted the CSE’s recommendations at a board meeting held on July 13, 2015.

In August 2015, the student and his mother moved outside of respondent’s district to a residence located within the boundaries of the East Syracuse-Minoa Central School District.  The student’s father and the student’s sibling remained within respondent’s district.  This appeal ensued.  Petitioners’ request for interim relief “permitting [the student] to reside in the Fayetteville-Manlius School District and attend the East Syracuse[-]Minoa Central School District” was denied on May 2, 2016.

Petitioners allege that respondent failed to provide a free and appropriate public education (“FAPE”) to the student while he was enrolled in respondent’s district.  Petitioners allege violations of the IDEA, State regulations and of the student’s “civil rights.”  For relief, petitioners seek: (1) a determination that respondent violated the student’s civil rights and committed “procedural violations” of law; (2) an order requiring respondent to “provide transportation and pay tuition” to the East Syracuse-Minoa Central School District so that the student can attend the East Syracuse-Minoa Central School District’s schools “until such time as he graduates or ages out”;[1] and (3) reimbursement of rent, legal fees and loss of income occasioned by respondent’s alleged violations of law.

Respondent contends that the appeal must be dismissed on procedural grounds and is otherwise without merit.  First, respondent urges that the petition must be dismissed because it was not served with certain exhibits to the petition, and the affidavits of verification do not comply with State regulations.  Respondent further contends that the appeal must be dismissed because it fails to contain a clear and concise statement of petitioners' claims and because petitioners failed to join a necessary party, the Board of Education of the East Syracuse-Minoa Central School District.  Respondent further asserts that the petition fails to state a claim upon which relief may be granted; specifically, respondent argues that the petition seeks an advisory opinion and that I lack jurisdiction to adjudicate petitioners’ allegations regarding IDEA and civil rights violations.

First, I must address several procedural matters.  Following service of respondent’s answer, petitioners submitted an additional pleading together with additional documents.  To the extent this pleading could be considered a reply, it was not served, as required, within 10 days following service of respondent’s answer (see 8 NYCRR §275.14[a]).  Alternatively, if the pleading is characterized as an additional submission, petitioners did not seek prior permission to submit the pleading and accompanying documents (8 NYCRR §275.3[b]).  Thus, under either set of circumstances, petitioners’ additional pleading and documents cannot be accepted.

Second, petitioners submit a “response” to respondent’s memorandum of law solely for the purpose of contesting the validity of factual statements contained in respondent's memorandum of law.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4); a memorandum of law does not constitute proof or evidence of any facts stated therein (Appeal of Goldin, 43 Ed Dept Rep 20, Decision No. 14,904).  Accordingly, I will not consider any statements in respondent’s memorandum of law as proof or evidence of the facts stated therein.  Petitioners’ response to respondent’s memorandum of law is therefore unnecessary and, to the extent it presents factual arguments and belatedly adds new assertions that are not part of the pleadings, is outside the scope of a memorandum of law, and will not be considered.

To the extent petitioners seek a determination that the student is a resident of respondent’s district, that claim is premature, and seeks an advisory opinion.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).  Here, the student and his mother moved to the East Syracuse-Minoa Central School District in August 2015, and there is no evidence that thereafter petitioners have sought a determination pursuant to 8 NYCRR §100.2(y) that the student is a legal resident of respondent’s school district or otherwise attempted to enroll the student in respondent’s district as a non-resident student.  In fact, the petition alleges that the student is a resident of the East Syracuse-Minoa Central School District.  Consequently, respondent has not yet made a determination as to the residency of this student, and this claim is not ripe for review.  Therefore, I decline to rule on the hypothetical set of facts posed by petitioners.

Additionally, to the extent petitioners seek an order that the student receive special education services from the East Syracuse-Minoa Central School District while residing in respondent’s district, this claim must also be dismissed for failure to join a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Board of Education of the East Syracuse-Minoa Central School District would clearly be affected by an order directing it to continue to educate the student until he graduates or ages out, even if he became a resident of respondent’s district.  Therefore, this claim must be dismissed for nonjoinder of such board of education as a necessary party.

Petitioners’ claims relating to respondent’s alleged violations of the IDEA and Article 89 of the Education Law must be dismissed for lack of jurisdiction.  Petitioners challenge the appropriateness of the student’s special education program and placement and seek an order directing respondent to pay for the student’s tuition and transportation expenses.  Claims brought to enforce rights under the IDEA and Article 89 of the Education Law must be addressed through the due process provisions of the IDEA (20 USC §1415) and Education Law §4404; such claims may not be addressed in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 16,956; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232).  Petitioners are raising special education placement claims governed by the IDEA and Education Law Article 89 which are properly the subject of an impartial hearing brought pursuant to Education Law §4404(1) and §200.5(j) of the Commissioner’s regulations.[2]^,[3]  Therefore, I lack jurisdiction over petitioners’ claims.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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