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Decision No. 12,752

Appeal of A CHILD WITH A HANDICAPPING CONDITION from action of the Board of Education of the Wappingers Central School District regarding pendency placement.

Decision No. 12,752

(July 17, 1992)

Raymond G. Kruse, P.C., attorney for respondent, Raymond G. Kruse, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals, on behalf of her son, from respondent's refusal to maintain her son's educational placement pursuant to the pendency provisions of Education Law '4404(4). The appeal is dismissed.

Petitioner's son was referred to respondent's committee on special education (CSE) for evaluation in January 1988. The CSE subsequently classified the pupil as having a handicapping condition and recommended that he receive resource room services. Although petitioner resided in an attendance zone served by the Vassar Road Elementary School, respondent permitted the pupil to attend Myers Corners Elementary School. The transfer was made at the parents' request, due to conflicts with the administration at the Vassar Road School. Thereafter, petitioner enrolled her son in another school district but re-enrolled him in respondent's district in November 1988. At that time, petitioner was directed to enroll her son in the Vassar Road Elementary School, within her attendance zone. According to respondent, the administration had changed and no further conflicts with petitioner were anticipated.

Petitioner refused to enroll her son at the Vassar Road School and requested that the CSE review his program and placement. The CSE convened and recommended that he receive the same resource room program at the Vassar Road Elementary School as he had received at the Myers Corners School the previous year. Petitioner requested an impartial hearing. Petitioner claimed that during the pendency of the hearing her son was entitled to attend Myers Corners Elementary School. Respondent disagreed, asserting that the pupil's pendency placement was the resource room program and that a change in location alone did not constitute a change in placement. From November 1988 until the dispute was resolved in June 1990, petitioner refused to send her son to school in respondent's district.

The procedural history regarding the pendency dispute is unclear. Petitioner apparently initiated an Article 78 proceeding in New York State Supreme Court, Dutchess County. The court's decision indicates that respondent improperly denied petitioner's request for a hearing on the pendency issue. The court ruled, however, that pending all proceedings, the child should be enrolled in school immediately in a placement determined by the district. The record does not indicate whether a hearing was ever scheduled or held. Apparently, the dispute remained unresolved until June 1990 when respondent's CSE met and recommended that petitioner's son attend a self-contained special education class at Myers Corners Elementary School. Petitioner apparently agreed to the recommendation and enrolled her son at Myers Corners.

Therefore, petitioner initiated this appeal to request an opinion whether it was procedurally correct for respondent to deny her son enrollment in Myers Corners Elementary School as his pendency placement. The matter is academic. To the extent that petitioner seeks an advisory opinion, I will not issue purely advisory opinions in appeals brought pursuant to Education Law '310 (Appeal of Children with Handicapping Conditions, 31 Ed Dept Rep 21; Application of a Child with a Handicapping Condition, 30 id. 262; Application of a Child with a Handicapping Condition, 30 id. 53).

However, for the benefit of the parties I note that, generally, the transfer of a child from one school to another alone does not constitute a change in educational placement (Christopher P. v. Marcus, 915 F2d 794; Concerned Parents and Citizens for Continuing Education at Malcolm X (P.S. 79) v. New York City Board of Education, 629 F2d 751, cert. den., 449 US 1078; see, also, Application of a Child with a Handicapping Condition, 29 Ed Dept Rep 92). Nevertheless, the court correctly concluded that once petitioner raised the issue and requested a hearing to resolve her complaint, she should have been given an opportunity to present her arguments before an impartial hearing officer pursuant to 8 NYCRR 200.5. Respondent erred in refusing to schedule such a hearing and is admonished to comply with those provisions of law in the future.

Finally, respondent's failure to enforce the provisions of the compulsory education law with respect to the 18 months that this pupil did not attend school cannot be ignored. Regardless of its position on petitioner's entitlement to a hearing on the issue of pendency, respondent is obligated pursuant to Education Law '3205 to ensure that all students within the compulsory school age attend school. Although the pupil ultimately received tutorial services as a compensatory measure, respondent had an affirmative duty to take appropriate actions to enforce the compulsory education law during the pendency dispute. If the parent and district were unable to agree to an interim placement pursuant to 8 NYCRR 200.5(a)(2)(5) pending resolution of the dispute, respondent had no alternative but to refer the matter to the Central Registry of the Department of Social Services (Social Services Law, Title 6).