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Decision No. 13,726

Appeal of a STUDENT WITH A DISABILITY by his parent, from action of the Board of Education of the Smithtown Central School District regarding the provision of educational services

Decision No. 13,726

(January 7, 1997)

Stein & Schonfeld, Esqs., attorneys for petitioner, Nancy A. Sorrentino, Esq., of counsel

Englander & Albert, P.C., attorneys for respondent, Peter G. Albert, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals respondent's actions concerning his son's educational placement. The appeal must be dismissed.

Petitioner's son is nine years old and is classified by respondent's committee on special education (CSE) as multiply disabled. He has been provided an individualized educational program (IEP) since the 1993-94 school year. His IEP for 1994-95 required a self-contained special education class with mainstreaming in a regular education second grade reading class, health, art and music as well as speech/language therapy five times per week. Petitioner disagreed with that IEP and requested an impartial hearing on August 3, 1994. The hearing was held on September 30 and November 4, 1994 and a decision was issued on November 30, 1994 that found the 1994-95 IEP appropriate. Petitioner then appealed to the state review officer (SRO), who upheld the hearing decision on March 9, 1995. Petitioner appealed the SRO decision to the U.S. District Court for the Eastern District of New York by filing a summons and complaint on May 31, 1995.

On June 1, 1995, the CSE met to recommend services for the 1995-96 school year. An IEP for 1995-96 was developed that required a self-contained class with mainstreaming for third grade reading three times per week, science, health and music, as well as speech /language therapy five times per week. Petitioner disagreed with the 1995-96 IEP and requested an impartial hearing on July 13, 1995. The parties agreed to adjourn the hearing regarding the 1995-96 IEP until resolution of the federal court challenge to the 1994-95 IEP.

Petitioner requested a separate impartial hearing to determine what services should be provided to his son while the court appeal is pending. This "pendency" hearing was scheduled for January 30, 1996 and on that date, an order was entered on the record confirming the parties' agreement that petitioner's son receive instruction in art in his self-contained second grade class as well as with the regular second grade class; complete mainstream instruction in science and mainstream instruction in reading five times per week. The hearing officer issued a decision on February 21, 1996 that incorporated the stipulation and gave notice to the parties of their right to appeal to the SRO. Petitioner commenced this appeal on March 26, 1996.

Despite his challenge to the 1994-95 recommended IEP currently pending in federal court, petitioner seeks an order directing respondent to maintain his son in the placement recommended in the contested 1994-95 IEP pending a decision in the judicial proceedings and to provide his son with two years of compensatory education. He contends that respondent has failed to provide his son with full mainstreaming in reading and with speech/language therapy five times per week. Petitioner also contends that respondent has repeatedly made unilateral determinations as to the duration and frequency of his son's mainstreaming opportunities and refuses to provide mainstreaming services at the same time and for the same duration as it does for regular education students.

Respondent contends that petitioner's son receives full mainstreaming in second grade reading as well as a full complement of speech and language services five times per week. Respondent also contends that the petition fails to state a claim upon which relief may be granted and should be dismissed as untimely. In addition, respondent contends that the petitioner failed to exhaust administrative due process procedures. Respondent further contends that petitioner is collaterally estopped by virtue of his earlier appeal and that his petition should be dismissed because he elected to commence a similar challenge in U.S. District Court. Respondent contends that petitioner's son should be maintained in the placement recommended in the 1993-94 IEP pending a decision in the judicial proceedings as the last agreed-upon placement but also argues that the agreement stipulated on January 30, 1996 constitutes the pendency placement.

I will first address the jurisdictional issue of election of forum. Respondent contends that the petition must be dismissed because the same issues and the availability of the same remedies are currently before the federal court in the matter filed by petitioner on May 31, 1995. By petitioner's own admission, he seeks broad relief from the federal court, including inter alia, annulment of the SRO's decision regarding his son's 1994-95 IEP and an order remanding the matter back to the CSE to develop a new IEP for his son. Petitioner's federal court complaint also requests "such other and further relief as the court deems appropriate." Jurisdiction conferred by the Individuals with Disabilities Education Act (IDEA) upon the federal court includes broad discretion to grant relief that provides children with disabilities appropriate special education services (20 U.S.C. 1415(e)(2), School Committee of the Town of Burlington v. Department of Educ. of Mass., 471 U.S. 359, 370-71 (1985). This includes the authority to modify a child's placement and to determine the pendency, or "stay put", placement pending its final determination on the merits of the claims before it (Cronin v. Board of Educ., 689 F.Supp. 197 (S.D.N.Y. 1988); IDEA, 20 U.S.C. 1415(e)(3); 34 C.F.R. 300.513).

It is well settled that the prior commencement of an action or proceeding in another forum for similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner (Appeal of Andreasen, 26 id. 246). In this case, the court has jurisdiction over the parties and the subject matter and may, indeed, determine the pendency issue. Petitioner's claims regarding his son's educational placement involve a factual dispute with respondent over the nature and extent of services that have been and are being provided and go beyond deciding the child's "current educational placement", overlapping the issues explicitly pending before the federal court. In addition, petitioner seeks an order declaring the pendency placement to be the very IEP for 1994-95 that he has petitioned the federal court to review. For these reasons, I decline to accept jurisdiction where the parties and subject matter are before the federal court, which provides for a full evidentiary hearing as well as motion practice, and is the proper forum to resolving all the issues presented in this appeal (Appeal of a Student with a Disability, 32 Ed Dept Rep 104).