Decision No. 12,964

(July 22, 1993)

Neal H. Rosenberg, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals, on behalf of her son, from respondent's alleged denial of her request for an impartial hearing. The appeal must be dismissed.

Petitioner's son was a twelfth grade student at respondent's high school during the 1992-93 school year. He was classified learning disabled and attended a regular twelfth grade program with resource room and speech services. The student was scheduled to graduate in June 1993.

On April 22, 1993, petitioner requested an impartial hearing on her son's behalf. At the time of her request, a prior impartial hearing regarding independent evaluations for her son had concluded, but the hearing officer had not yet rendered a decision. Since the parties had just completed an impartial hearing, respondent's attorney asked petitioner why she was requesting yet another hearing. Petitioner challenges respondent's inquiry, asserting that she is under no obligation to reveal the reasons for her request. She asserts that such a request violates her son's rights under the Individuals with Disabilities Education Act (IDEA).

Respondent argues that, under the circumstances, its request was reasonable. The impartial hearing regarding independent evaluations had just concluded, and the record indicates that a meeting of the committee on special education (CSE) had also been scheduled for May 14, 1993. Respondent asserts, therefore, that its actions were appropriate and that its inquiry did not violate the IDEA.

Respondent has submitted as an exhibit to its answer a memorandum dated May 4, 1993 from its director of special education requesting that respondent appoint an impartial hearing officer pursuant to petitioner's April 22, 1993 request for a hearing. Therefore, despite petitioner's apparent refusal to reply to respondent's request, the record indicates that respondent, nonetheless, proceeded with scheduling the hearing. Consequently, although petitioner claims she was "denied access to due process", I do not find that petitioner has established that respondent denied her request for an impartial hearing and, therefore, she is not aggrieved. Nor does the fact that respondent asked petitioner's reason for requesting the hearing automatically violate a student's rights under IDEA or New York State Education Law, Article 89. In light of the recent conclusion of an impartial hearing regarding this student and the impending CSE meeting, I find respondent's request for clarification of the basis for petitioner's request entirely reasonable. Had respondent's director of special education delayed her request for the appointment of a hearing officer until after petitioner had provided reasons for the impartial hearing, such delay would be improper. As noted, that did not occur. Consequently, I do not find any violation of this student's rights simply by virtue of respondent's inquiry. To the extent that the letter from respondent's attorney implied that the scheduling of the hearing was contingent upon the reasons for which it was requested, respondent must ensure that any such inquiry by its attorney does not create such an implication.

In any event, the record indicates that petitioner's son graduated in June 1993. There is no indication that petitioner ever contested the appropriateness of her son's graduating (see, Appeal of a Child with a Handicapping Condition, 28 Ed Dept Rep 495). Indeed, in her petition she acknowledges that her son was graduating, but does not raise any issues contesting that event. Therefore, having received his diploma, her son is no longer eligible to attend school pursuant to Education Law '3202 (see, also, Education Law '4401[1]). The claims raised by petitioner in this appeal thus not only lack merit but are also, at this time, academic.

THE APPEAL IS DISMISSED.

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