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Decision No. 12,675

Appeal of CHILDREN WITH HANDICAPPING CONDITIONS, by their parents, from action of the Board of Education of the Warwick Valley Central School District relating to instructional aides.

Decision No. 12,675

(March 27, 1992)

Shaw & Silveira, attorneys for respondent, David S. Shaw, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal from respondent's decision to abolish the positions of instructional aides assigned to resource rooms serving children with handicapping conditions. The appeal must be dismissed.

On May 22, 1991, respondent's budget was approved by district residents. On June 10, 1991, respondent abolished the positions of eight instructional aides assigned to resource rooms serving children with handicapping conditions. Petitioners filed this appeal on June 17, 1992.

Two petitioners are parents of children with handicapping conditions currently enrolled in the Warwick Valley Central School District ("respondent"). The other petitioners are advocates acting on behalf of similarly situated children in the district. Petitioners also attach "petitions" signed by district residents declaring that they are "parties" in the appeal. Accordingly, petitioners request that this matter be maintained as a class appeal on behalf of 100 similarly situated children.

Petitioners contend that the abolition of instructional aide positions violates Education Law Article 89 and the Individuals with Disabilities Education Act (IDEA) that requires all decisions regarding children with handicapping conditions to be made on an individual basis in a manner consistent with the procedural safeguards established by law. Petitioners also allege that respondent acted improperly when it excessed the instructional aides without public input and approval. Petitioners argue that if the public had been properly informed about respondent's decision to abolish the instructional aide positions, the budget would have been defeated. Petitioners also allege violations of the Open Meetings Law. Petitioners seek, among other things, an order prohibiting respondent from removing instructional aides from the resource room programs and an order nullifying the school district budget vote.

Respondent contends that it acted properly when it abolished the instructional aide positions. Respondent asserts that it properly considered the impact of its decision on individual children with handicapping conditions by reviewing the proposed change of program at each child's annual review.

Before reaching the merits, I will address petitioners' request to treat this matter as a class appeal. Section 275.2 of the Regulations of the Commissioner of Education provides for class appeals where the class is so numerous that joinder is impracticable and where all questions of fact and law are common.

Whether the removal of an aide from a child's resource room program is appropriate depends upon the needs of the individual child. For that reason, both Article 89 and IDEA require that parents be given notice and the Committee on Special Education (CSE) convene to consider any proposed change in program. In the instant matter, petitioners do not allege that they never received such notice, that a meeting was not scheduled, nor an opportunity to bring an appeal denied. Moreover, the record indicates that the impact of respondent's decision to remove aides from the resource room was reviewed by the CSE for each child affected at the child's annual review. There is no evidence to suggest that parents were either denied proper written notice of their right to challenge the change in program or otherwise denied their rights to an impartial hearing. Because an individualized determination on each child's program must be made precluding common questions of fact, there is no basis for treating this matter as a class appeal (Appeal of Amato, 30 Ed Dept Rep 469; Appeal of Keisler, 29 id. 235).

I also note that the two petitioners who are acting as advocates lack standing to bring this appeal. Although advocates may represent parents in impartial hearings (Application of a Child with a Handicapping Condition, 28 Ed Dept Rep 280), an advocate lacks standing to bring an appeal under Education Law ''310 or 4404 on behalf of children with handicapping conditions who are not their own (Appeal of Trowbridge, et al., 27 Ed Dept Rep 252).

The petitions filed by parents on behalf of their own children must be dismissed for failure to exhaust administrative remedies. Education Law '4404(1) specifically requires that parents request an impartial hearing to challenge any matter involving the placement of their child. The record indicates that those petitioners whose children were directly affected by respondent's decision to eliminate the resource room aides were given the opportunity to challenge the CSE's recommendation at an impartial hearing. In the instant appeal, although petitioners acknowledge their procedural rights to an impartial hearing to determine the appropriateness of the proposed change in program, they failed to exercise them. To the extent petitioners seek to bypass the administrative process and obtain classwide relief in a matter properly considered on a case by case basis at the impartial hearing level, this appeal must be dismissed for failure to exhaust administrative remedies (Appeal of a Child Suspected of Having a Handicapping Condition, 30 Ed Dept Rep 448; Application of a Child with a Handicapping Condition, 26 id. 540).

To warrant an order nullifying the budget vote, petitioners must establish the existence of an irregularity in the process and demonstrate that but for the irregularity, the results of the vote probably would have been otherwise (Application of Hable, 30 Ed Dept Rep 328; Appeal of Weaver, 28 id. 183; Appeal of Blake, 27 id. 89). I note that despite petitioners' allegations that respondent misled and confused the voters regarding the instructional aides, there is no evidence in the record that respondent failed to carry out its obligation under Education Law '1716 to inform the public of the school district budget. Here, notwithstanding petitioners' allegations that respondent acted improperly and that the voters would have rejected the budget by an overwhelming margin, petitioners offer no proof to support their claims. Under the circumstances, petitioners have not met their burden to establish facts upon which the relief sought may be granted (Appeal of Young, 26 Ed Dept Rep 272; Matter of Haley, 21 id. 49).

Petitioners also claim that respondent violated the Open Meetings Law (Public Officers Law, Article 7) by holding "secret" meetings. It is well settled that violations of the Open Meetings Law are properly reviewed in a judicial proceeding brought pursuant to the Civil Practice Law and Rules Article 78, or in a judicial action for declaratory judgment and/or injunctive relief, and may not be adjudicated in an appeal to the Commissioner of Education (Appeal of Elkins, 27 Ed Dept Rep 99; Application of Board of Education, Cornwall CSD, 25 id. 250; Matter of Alcorn, et al., 24 id. 201).

I have considered petitioners' other arguments and find them to be without merit.