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Decision No. 12,710

Appeal of a CHILD WITH A HANDICAPPING CONDITION, by his parents from action of the Board of Education of the Highland Central School District regarding procedures at a meeting of the committee on special education.

Decision No. 12,710

(June 5, 1992)

RosaLee Charpentier, Esq., attorney for petitioner

Raymond G. Kuntz, P.C., attorney for respondent, Wendy F. Klarfeld, Esq., of counsel

SOBOL, Commissioner.--Petitioners, parents of a child with a handicapping condition, appeal from the Highland Central School district's denial of their request to bring a stenographer to transcribe a meeting of respondent's committee on special education (CSE). Petitioners seek an order directing respondent to discontinue its policy of denying parents access to verbatim transcripts of their children's CSE meetings and to permit them to bring a stenographer to transcribe CSE meetings regarding their son. The appeal is sustained.

As parents of a child with a handicapping condition, petitioners have attended several CSE meetings to discuss their son's individualized education program. At the last meeting petitioners attended on November 15, 1991, they asked permission to videotape the meeting. Before the meeting began, petitioners were advised that, although audiotaping was allowed, videotaping would not be permitted because it inhibited certain CSE members and made them feel uncomfortable. Asserting that an audiotape of a CSE meeting was inadequate due to difficulties they had in distinguishing voices on the tape and understanding expert terminology, petitioners requested permission to bring a stenographer to the next meeting at their own expense. Thereafter, on December 13, 1991, they called the CSE chairperson who informed them that their request was denied. On January 3, 1992, petitioners' counsel wrote to respondent's superintendent of schools, detailing petitioners' request. In that letter, the attorney requested a prompt written explanation of respondent's position, but never received a response. Petitioners commenced this appeal.

Respondent contends that the appeal should be dismissed as untimely because it was commenced on February 28, 1992, more than thirty days after respondent's CSE chairperson informed petitioners that their request had been denied.

Section 275.16 of the Regulations of the Commissioner of Education requires that appeals brought pursuant to Education Law "310 be initiated within thirty days after the making of the decision or performance of the act complained of. Respondent identifies petitioners' December 13, 1991 conversation with the CSE chairperson as the action being reviewed. Petitioners' papers indicate, however, that they seek review of the superintendent's failure to respond to their attorney's formal written request of January 3, 1992, and challenge respondent's ongoing practice of depriving parents of the right to obtain verbatim transcripts of CSE meetings.

On the record before me, I find that petitioners made good faith efforts to resolve their problem at the local level by seeking review from the superintendent of the CSE chairperson's denial of their request. There is no question that respondent never replied to petitioners' January 3, 1992 letter. Where a parent seeks formal review or confirmation from the superintendent regarding a school official's actions, particularly in the absence of any official or written administrative policy on the matter under review, the time for filing an appeal does not begin to run until a written determination is made. In addition, I find that respondent's refusal to allow stenographic transcripts of CSE meetings constitutes an ongoing practice that may be appealed at any time. Accordingly, I find the appeal timely.

Petitioners contend that respondent's decision effectively deprives them of meaningful participation in the process of developing their son's IEP. Respondent contends that petitioners, who are not disabled, do not need a stenographer to enable them to understand or meaningfully participate in CSE meetings, as evidenced by the extent of their past participation. Respondent also denies that it has a policy that deprives parents access to verbatim transcripts of their children's CSE meetings because it routinely makes available to them copies of CSE minutes and permits audiotaping. Respondent also defends its decision regarding petitioners' request by arguing that the presence of the additional person needed to make a verbatim transcript would disrupt the CSE meeting and adds an adversarial tone.

The Individuals with Disabilities Education Act (20 USC 1400, et seq. ["the IDEA"]) emphasizes the importance of meaningful parental input in the process of developing a child's IEP (Honig v. Doe, 484 U.S. 305, 324). Federal regulations implementing the IDEA require that school districts "...take whatever action is necessary to insure that the parent understands the proceedings at a [CSE] meeting" (34 CFR 300.345[e]). Consistent with this mandate, the Commissioner previously concluded that there was no basis to deny parents of children with handicapping conditions the opportunity to record CSE meetings involving their children's education to aid them in understanding the proceedings and in making informed decisions (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 178, 181). Respondent advances essentially the same objections to the presence of a stenographer at a CSE meeting that the Commissioner previously rejected in the case challenging a district's refusal to allow a parent to audiotape such meetings (Application of a Child with a Handicapping Condition, id. at 180). To the extent respondent argues that audiotaping or providing parents with minutes of CSE meetings is synonymous with a verbatim transcript, the argument is without merit. Unlike minutes that merely summarize the CSE meeting, or an audiotape alone, a verbatim transcript identifies every speaker and creates a written record of each word spoken. Particularly when multiple voices are recorded simultaneously on an audiotape and the listener is unfamiliar with terminology used by experts at the meeting, even the highest quality audiotape is not equivalent to a verbatim transcript. In any case, given the fact that CSE meetings involve multiple members, in addition to those participants invited by the district and the parents, and frequently involve professional jargon not readily understood by lay persons, I find the parents' interest in informed decisionmaking outweighs the district's concern that a stenographer's presence would distract CSE members. The applicable standard is the same as for audiotape recording and has been met by petitioners with regard to the necessity for stenographic transcription as an aid for understanding the CSE proceedings, and for ensuring the opportunity for meaningful participation (Application of a Child with a Handicapping Condition, id at 180).

As more fully discussed in the Commissioner's decision regarding audiotaping, the rights of parents to bring a stenographer to a CSE meeting carry with it the same limitations previously discussed in Application of a Child with a Handicapping Condition, id. at 181. In particular, the right to transcribe a CSE meeting is subject to the confidentiality provisions of the IDEA, the Family Educational Rights and Privacy Act of 1974 and applicable regulations (see 20 USC "1232g, 1417[c]; 34 CFR part 99; 34 CFR 300.129; 8 NYCRR 200.5[f]). As such, a parent may not transcribe those parts of a meeting that include discussion of children other than their own. Similarly, the use of a stenographer to transcribe CSE meetings must be exercised in good faith, solely to aid parents' understanding of the proceedings and to assist them in the process of informed decisionmaking.