Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Westhampton Beach Union Free School District regarding a non-resident tuition contract.

Decision No. 17,367

(April 4, 2018)

Kevin A. Seaman, Esq., attorney for respondent

ELIA, Commissioner.--Petitioners in this appeal seek a declaratory judgement regarding the obligations of the Board of Education of the Westhampton Beach Union Free School District (“respondent”) pursuant to a non-resident tuition contract.  The appeal must be dismissed.

Petitioners are residents of the Remsenburg-Speonk Union Free School District (“Remsenburg-Speonk”), which is a kindergarten through sixth grade school district that contracts with neighboring school districts on a tuition basis for the education of its students in grades seven through twelve.  According to the record, respondent is one of the neighboring school districts with which Remsenburg-Speonk contracts; Eastport-South Manor apparently is another such district.

Petitioners’ son is a student with a disability who, during the 2014-2015 school year, attended sixth grade in Remsenburg-Speonk.  During that year, Remsenburg-Speonk convened its Committee on Special Education (“CSE”) to make a recommendation for the student’s program and placement for the following school year, when the student would attend seventh grade.  Petitioners rejected that recommendation and initiated an impartial due process hearing[1] pursuant to Education Law §4404.  The parties subsequently settled that dispute, stipulating that Remsenburg-Speonk would seek implementation of the recommended program and placement in respondent’s school district for the 2015-2016 school year.  Respondent declined Remsenburg-Speonk’s request to admit the student to its schools.  Petitioners commenced an action against respondent in federal court which was dismissed for failure to exhaust administrative remedies pursuant to, inter alia, the Individuals with Disabilities Education Act, 20 USC §1400, et seq. (C.K and T.K., on behalf of A.K., and A.K. v. Board of Education of the Westhampton Beach Union Free School District, 185 FSupp3d 317).

In May 2016, petitioners filed a due process complaint notice against respondent, claiming that respondent failed to offer their son a free appropriate public education (“FAPE”) and unlawfully denied their son placement in the district. 

On May 18, 2016, petitioners commenced this appeal seeking, as more fully set forth below, a declaratory judgment regarding respondent’s obligation to convene a CSE meeting for their son or, in the alternative, to participate in an impartial due process hearing.  By decision dated June 4, 2016, the IHO in the impartial due process hearing granted respondent’s motion to dismiss that complaint.  Petitioners appealed the determination and, by decision dated July 11, 2016, an SRO vacated the IHO’s decision and remanded the matter to the IHO for further proceedings. 

Following remand, the IHO issued a decision on January 26, 2017.  A review of that decision reveals that respondent had enrolled petitioners’ son in September 2016, convened a CSE meeting and developed an individualized education program (“IEP”) for the student for the 2016-2017 school year.  Petitioners challenged that IEP in a due process complaint notice that was consolidated with the remanded due process proceeding.

In this appeal, petitioners assert that respondent is required to convene a CSE meeting for petitioners’ son based upon the contract between respondent and Remsenburg-Speonk for the education of Remsenburg-Speonk’s students in grades seven through twelve.  As relief, petitioners seek a declaration to that effect, compelling respondent “to accept its role as the Petitioner’s CSE” [sic] and convene and chair a CSE meeting regarding their son or, in the alternative, a declaration compelling respondent to take part in an impartial hearing and “memorialize its denial of the [student’s] integration” in that due process impartial hearing.

Respondent contends, among other things, that petitioners improperly seek a declaratory judgment, as such relief is not available from the Commissioner of Education; that petitioners fail to state a claim against it; and that the appeal is moot.

I will first address several procedural matters.  Petitioners have submitted a reply in this proceeding.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer. 

Likewise, respondent submitted a memorandum of law.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Therefore, while I have reviewed respondent’s memorandum of law, I have not considered those portions containing new assertions not in its pleadings.

Next, petitioners seek relief not available to them, warranting dismissal of the appeal.  The sole relief sought in the “Petition for Declaratory Judgement” before me are requests for alternative declaratory judgments declaring respondent’s legal obligations.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Therefore, the appeal must be dismissed.

The appeal must also be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  As noted above, I take administrative notice of the January 2017 IHO decision, which indicates that, subsequent to the initiation of this appeal, respondent enrolled petitioners’ son and convened a meeting of its CSE, which developed an IEP for the student.  Respondent also initiated an impartial due process hearing upon receipt of petitioners’ complaint regarding the recommended IEP.  Respondent’s actions render this matter moot, warranting dismissal on that ground as well.

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

THE APPEAL IS DISMISSED.

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