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Decision No. 13,686

Appeal of a STUDENT WITH A DISABILITY by his parent, from action of the Board of Education and the Committee on Special Education of the Commack Union Free School District regarding attendance at meetings.

Decision No. 13,686

(October 7, 1996)

Long Island Advocacy Center, attorneys for petitioner, Michael E. Deffet, Esq., of counsel

Cahn, Wishod & Lamb, LLP, attorneys for respondent, Robert H. Cohen, Esq. of counsel

MILLS, Commissioner.--Petitioner challenges the action of the Committee on Special Education ("CSE") and the Board of Education of the Commack Union Free School District ("the board") allowing the school district attorney to attend a meeting of the CSE. Petitioner seeks an order that respondents violated the Education Law and regulations by conducting a meeting of the CSE on February 8, 1996 with the school attorney present and an order prohibiting respondent CSE from conducting any future meetings with its attorney present. The appeal must be dismissed.

Petitioner's son is eleven years old and is classified by respondent CSE as a student with a disability. Pursuant to an order by an impartial hearing officer, arising out of an impartial hearing concluded on December 8, 1995, a meeting of respondent CSE was scheduled for February 8. The purpose of the February 8, 1996 CSE meeting was to review the student's individualized educational program (IEP), including a proposed behavior modification plan and an assistive technology evaluation completed pursuant to the decision of the hearing officer dated January 10, 1996.

Petitioner appeared with her attorney at the CSE meeting on February 8, 1996, but requested that the school district's attorney, who was also present, be required to leave the meeting. When the CSE denied this request, petitioner and her attorney left the meeting. Petitioner then commenced this appeal.

The sole issue is whether a school district's attorney may attend CSE meetings. Petitioner contends that the presence of respondents' attorney at CSE meetings raises precisely the same issues addressed in Matter of Wohl, 105 AD2d 999, aff'd 66 NY2d 818, which upheld the Commissioner of Education's decision prohibiting members of a board of education from attending CSE meetings. Petitioner also contends that the purpose of respondents' attorney attending CSE meetings is to prepare for possible future litigation. Petitioner argues that the board and CSE do not have the same right as parents to have their attorney present at CSE meetings.

Respondents argue that the rationale underlying the Court's decision in Wohl v. Ambach is inapplicable to counsel for school districts. Respondents also argue that the U.S. Department of Education interprets Federal regulations under the Individuals with Disabilities Education Act (IDEA) to permit a school district to include its attorney in an IEP meeting even if the parent is not represented by counsel.

As the Commissioner of Education has previously held, the factual considerations supporting the decision in Matter of Wohl, supra, do not apply to school district attorneys (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 286). Moreover, respondent correctly asserts that Federal regulations specifically give educational agencies, as well as parents, discretion to invite non-CSE members to CSE meetings (34 CFR 300.344[a][5]; see, Medford v. District of Columbia, 691 F.Supp. 1473, 1481). Federal regulation 34 CFR 300.344 requires the school district, as a public agency, to ensure that each CSE meeting includes:

(1) A representative of the public agency, other than the child's teacher, who is qualified to provide, or supervise the provision of, special education.

(2) The child's teacher.

(3) One or both of the child's parents, subject to '300.345.

(4) The child, if appropriate.

(5) Other individuals at the discretion of the parent or agency.

Both parties cite the letter issued by the U.S. Department of Education's Office of Special Education Programs on January 17, 1995 interpreting 34 CFR 300.344:

Therefore, the public agency can exercise its discretion to include "other individuals" in IEP meetings, including the school district's attorney. While nothing in the regulations prohibits the public agency from including the attorney in the IEP meeting even if the parent is not represented by counsel and/or has not requested mediation or a due process hearing, OSEP discourages public agencies from bringing their attorneys to IEP meetings. The participation of a school district's attorney could potentially create an adversarial atmosphere at the meeting, which could interfere with the development of the child's IEP in accordance with the requirements of Part B. (Letter to Diehl, 22 IDELR 734)

This interpretation by OSEP is consistent with a prior decision of the Commissioner of Education on this same point: district attorneys are not precluded from attending IEP conferences as a matter of law. I caution, however, that school attorneys should be invited to CSE meetings only on those rare occasions when the committee's ability to perform its functions depends upon the immediate resolution of critical legal issues. The IEP meeting is a forum intended to foster a "cooperative approach" between parents and school officials in providing pupils with a free appropriate education (see, Tucker v. Bay Shore Union Free School Dist., 873 F2d 563). Just as school board members are prohibited from attending CSE meetings (see, Matter of Wohl, supra), the school attorney may not be used as a "listening post" for the board of education, nor may the district's lawyer attend CSE meetings for the purpose of intimidating parents or undermining the decisionmaking process. (Application of a Child with a Handicapping Condition, supra)

Similar to the facts in Application of a Child with a Handicapping Condition, supra, respondents here were faced with an important legal concern at the disputed CSE meeting on February 8, 1996, involving implementation of the hearing officer's order. Under these circumstances, attendance by respondents' counsel at the meeting for the purpose of advising the CSE on implementation of the hearing decision was not an abuse of discretion. Petitioner has not established that respondents' attorney attended for any other purpose.