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Decision No. 12,585

Application of a CHILD WITH A HANDICAPPING CONDITION, by his parent, from action of the Board of Education of the City School District of the City of New York regarding the provision of educational services.

Decision No. 12,585

(September 19, 1991)

Hon. Victor A. Kovner, Corporation Counsel, attorney for respondent, Lawrence E. Becker, Phoebe V. Redmond, Roslyn Z. Roth and Paul Ivers, Esqs., of counsel

SOBOL, Commissioner--In this fifth appeal brought by petitioner, she alleges that respondent has acted improperly in a number of instances and requests that respondent be ordered to pay for her son's attendance at a nonpublic school. The appeal must be dismissed.

Petitioner's son is nine years old and classified by respondent's Committee on Special Education (CSE) as learning disabled in mathematics. His educational history is fully set forth in a prior decision of the Commissioner of Education (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 108). In January 1990, the CSE developed an individualized education program (IEP) for petitioner's son which provided for resource room and testing modifications in math. Petitioner objected to the resource room placement, and requested an impartial hearing. The hearing took place over three days between February 14 and April 5, 1990. The hearing officer rendered his decision on May 10, 1990, upholding the IEP recommended by respondent's CSE. On September 11, 1990, the Commissioner of Education sustained, in part, petitioner's subsequent appeal of the hearing officer's decision (id.).

In this appeal, petitioner alleges that respondent refused to conduct an annual review of her son's educational needs, improperly denied him admittance to a gifted program, harassed her and her son in retaliation for her filing a complaint with the Office of Civil Rights, refused to provide her with a parent-teacher conference, and failed to investigate alleged improper acts of certain district employees and is guilty of gross neglect in connection with her son.

Petitioner submits a reply to respondent's answer that raises new issues. Pursuant to the Regulations of the Commissioner of Education, a reply may respond to affirmative defenses and to new material raised in an answer (8 NYCRR 275.3, 275.14). The reply, however, does not provide an opportunity to raise new issues (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 258). New issues set forth in petitioner's reply are not properly before me, therefore, and will not be considered.

It must be noted that several of the issues raised by petitioner must be dismissed under the doctrine of resjudicata, since they were raised and dismissed in previous appeals filed by petitioner. In petitioner's first appeal (Application of a Child with a Handicapping Condition, supra), she raised the fact that respondent allegedly failed to conduct an annual review, that respondent improperly denied her son admittance to a gifted program and that respondent neglected her son. Those claims were reviewed and were found to be without merit. In her third appeal (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 335), respondent's alleged failure to investigate the actions of certain district employees was also reviewed and rejected. Having raised and received an adverse determination on those issues, petitioner is barred by the doctrine of resjudicata from relitigating those issues before me (Appeal of Roth, 26 Ed Dept Rep 165; Matter of Monaco, 24 id. 348; Matter of Gerber, 13 id. 19).

Regarding her contentions of harassment in retaliation for filing a complaint with the Office of Civil Rights (OCR) and respondent's improper denial of a parent-teacher conference, petitioner offers no evidence to support her assertions. Respondent denies those allegations. The present appeal is taken pursuant to the provisions of Education Law "310. In such appeals, the petitioner has the burden of establishing the facts upon which he or she seeks relief (Appeal of Pickreign, 28 Ed Dept Rep 163). Petitioner has not met her burden of proof. Accordingly, there is no basis to grant the relief requested.

It must be noted as well, that if petitioner is dissatisfied with the educational placement of her son, she must exhaust available administrative remedies before initiating an appeal (Matter of a Handicapped Child, 21 Ed Dept Rep 369; Matter of a Handicapped Child, 20 id. 256). Pursuant to Education Law "4404(1), if a recommended placement offered by the CSE is unacceptable, a parent must request a hearing before an impartial hearing officer before commencing an appeal. Petitioner has also failed to follow the prescribed procedures in this instance.