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Decision No. 14,257

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Mamaroneck Union Free School District regarding an individualized education program.

Decision No. 14,257

(November 29, 1999)

Shaw & Perelson, LLP, attorneys for respondent, Lisa S. Rusk, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Mamaroneck Union Free School District ("respondent") to deny his son the use of a TI-92 calculator in his Math 3A class. The appeal must be dismissed.

Petitioner resides with his wife and son in respondent's school district. Petitioner's son is seventeen years old and is classified as a student with a learning disability by respondent's committee on special education ("CSE"). An individualized education program (IEP) for the 1998-1999 school year was developed for petitioner's son which permitted him to use a TI-82 calculator in his Math 3A class. The student's IEP also allowed him limited use of a TI-92 calculator but only to check his work in his Math 3A class.

By letter dated December 16, 1998, petitioner's wife requested an impartial hearing to challenge her son's IEP to the extent that it limited his use of the TI-92 calculator in his Math 3A class. At the impartial hearing which commenced on January 25, 1999, petitioner's wife stated that she and her husband share custody of their son and that she was acting on her son's behalf in the impartial hearing. The hearing decision rendered on June 2, 1999 upheld the student's IEP. Petitioner's wife appealed the hearing decision to the State Review Officer (SRO) where it is pending.

At a meeting of the board of education held on April 13, 1999, petitioner asked respondent to permit his son to use the TI-92 calculator in his Math 3A class. However, respondent did not entertain petitioner's request because, as a matter of general policy, it does not verbally respond to questions posed by audience members at board meetings. By letter dated June 11, 1999, petitioner informed respondent that the impartial hearing for his son had concluded and asked for a written response to his April 13, 1999 request.

On June 18, 1999, respondent sent petitioner a letter indicating that the hearing decision had addressed the matter appropriately. Petitioner's son received a failing grade of 51 in Math 3A and began attending The Smith School's summer 1999 program, taking sequential mathematics III for half credit.

Petitioner commenced this appeal on June 29, 1999. Petitioner specifically seeks to expunge his son's failing grade in Math 3A from his school records and to substitute the grade his son received in The Smith School's summer program into such records. Petitioner also seeks reimbursement of $1500.00 for the cost of tuition at The Smith School, as well as expenses for continued math tutoring for his son.

Petitioner contends that respondent's refusal to allow his son to use the TI-92 calculator in Math 3A was the direct cause of his failing grade in that class. Petitioner also contends that respondent's practice and policy of denying use of the TI-92 calculator to his son and other learning disabled students constitutes discrimination under Section 504 of the Rehabilitation Act and a violation of Section 200.1[2][x] of the Regulations of the Commissioner of Education.

Respondent denies petitioner's allegations and contends that the appeal should be dismissed as untimely and because it is an attempt to circumvent the appeal process set forth in Education Law "4404. Respondent also contends that the appeal should be dismissed because it seeks an advisory opinion, unavailable through Education Law "310, regarding school district policies on the use of assistive technology for students with disabilities. Respondent defends the grade issued to petitioner's son in his Math 3A class and contends that his failure was due to his refusal to complete tests and quizzes at the direction of his mother. Respondent further contends that petitioner's request for reimbursement of tuition is improperly directed to the Commissioner and was denied by the impartial hearing officer.

With regard to timeliness, an appeal to the Commissioner of Education must be brought within thirty days of the making of the decision or act complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16, Appeal of Nicotri, 38 Ed Dept Rep 80, Decision No. 13,987). The petition does not clearly identify a specific decision or act of respondent that is the subject of this appeal, other than respondent's denial of the use of a TI-92 calculator for his son. If petitioner is appealing from respondent's lack of response to his request at its April 30, 1999 meeting, then this appeal must be dismissed as untimely. However, petitioner claims in his reply to be appealing from respondent's June 18, 1999 letter which stated that "the Board has received the findings of the Hearing Officer and is satisfied that the matter has been addressed appropriately by all concerned." In view of petitioner's appeal within thirty days of respondent's June 18, 1999 letter I will not dismiss the appeal as untimely.

However, the appeal must be dismissed on jurisdictional grounds. The limit on petitioner's son's use of a TI-92 calculator in his Math 3A class was a result of action by respondent's CSE and is included in the student's IEP. Respondent's June 18, 1999 letter merely stated that the matter in dispute was addressed in the June 2, 1999 hearing decision. The proper avenue of redress in a dispute over a CSE's determination is an impartial hearing (Education Law "4404[l]; 8 NYCRR "200.5; Appeal of a Student Suspected of Having a Disability, 37 Ed Dept Rep 565, Decision No. 13,928; Appeal of a Student with a Disability, 36 id. 4, Decision No. 13,634; Appeal of a Student with a Disability, 35 id. 405, Decision No. 13,585. If either party is dissatisfied with the hearing officer's decision, they may seek review by the State Review officer ("SRO") pursuant to Education Law "4404[2]. The record shows that petitioner's wife appealed the hearing decision to the SRO, where it is pending. Since petitioner's son has been afforded the process due in the proper forum, this appeal must be dismissed for lack of jurisdiction.

To the extent petitioner appeals his son's failing grade in Math 3A, I will not substitute my judgment for that of school officials with regard to the determination of a student's grade absent a clear showing that the determination was arbitrary, capricious or unreasonable (Appeal of John W. and Lorraine W., 37 Ed Dept Rep 713, Decision No. 13,965; Appeal of Hickey, 32 id. 12, Decision No. 12,741; Appeal of Timbs, 29 id. 392, Decision No. 12,331). Petitioner has not proved the cause of his son's failing grade and has not demonstrated that respondent was arbitrary, capricious or unreasonable.

I have considered petitioner's remaining claims and find them without merit.