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Decision No. 14,680

Appeal of A STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Holland Patent Central School District regarding educational placement.

Decision No. 14,680

(January 29, 2002)

Richard N. Bach, Esq., attorney for petitioner

Donald R. Gerace, Esq., attorney for respondent

MILLS, Commissioner.--Petitioners appeal the denial by the Board of Education of the Holland Patent Central School District ("respondent") of their request for placement of their son in a specific third grade class in respondent's district. The appeal must be dismissed.

Petitioners' son is a nine-year-old student with a disability who has attended school in respondent's district since kindergarten. The student attended regular classes with the related services of a resource room and occupational therapy. In April 2001, when petitioners' son was in second grade, petitioners requested that he be assigned to either of two specific third grade teachers for the 2001-02 school year (respondent employs two female and one male third grade teachers). Thereafter, respondent assigned petitioners' son to the female teacher not requested by petitioners. In August 2001, petitioners requested that respondent's superintendent reconsider their son's classroom assignment for third grade, and presented the superintendent with a note from their son's physician opining that the student required a male teacher, as he responds better to males than females.

Petitioners also initiated an impartial hearing pursuant to Education Law "4404 regarding the provision of special education services unrelated to the teacher assignment issue. Those other issues apparently were resolved through mediation.

Respondent's superintendent refused to reconsider petitioners' son's third grade class assignment. Petitioners appealed to respondent, which affirmed the superintendent's decision. Petitioners initiated this appeal on October 17, 2001. As part of their appeal, petitioners requested that I issue an interim order directing respondent to place their son in the requested third grade class pending a determination on the merits of this appeal. On November 1, 2001, I denied petitioners' request for such an order.

Petitioners contend that respondent's denial of their request is arbitrary and capricious and also constitutes a denial of the student's right to a free appropriate public education. Respondent asserts that the appeal is moot and that its decision was lawful and otherwise proper in all respects.

I will first address respondent's procedural defense. Respondent alleges that, subsequent to its denial of petitioners' request for a specific classroom assignment for their son, petitioners removed their son from school and commenced home schooling pursuant to 8 NYCRR "100.10. Respondent submits the approved individualized home instruction plan it approved for petitioners' son during the 2001-02 school year. Petitioners do not deny respondent's assertion, and respondent contends that, therefore, this appeal is moot.

It is well settled that the Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Huber, et al., 41 Ed Dept Rep ___, Decision No. 14,676; Appeal of Jaski, et al., 40 id. 154, Decision No. 14,446). I note that petitioners enrolled their son in respondent's schools for each of the preceding school years. It is clear that petitioners began instructing their son at home in response to respondent's refusal to make the classroom assignment they requested, and, thereafter, initiated this appeal seeking an order directing their son's immediate placement in respondent's schools with the requested teacher. In view of the fact that petitioners seek a specific educational placement in respondent's schools as relief in this appeal, I do not find that petitioners' current decision to home school their son in response to respondent's refusal of their request renders the appeal moot.

However, the appeal must be dismissed on the merits. Pupil placement is a matter of educational policy, which lies within the professional judgment and discretion of those charged with the administration of the public schools (Matter of Britt v. Rogers, 108 AD2d 855, citing, Hoffman v. Board of Educ., 49 NY2d 121, and Matter of Board of Educ. v. Board of Educ., 80 AD2d 564; Appeal of Shabot, 35 Ed Dept Rep 289, Decision No. 13,544; Appeal of Sponcy, 33 id. 126, Decision No. 12,998). Likewise, numerous previous decisions of the Commissioner have determined that boards of education have broad authority, under Education Law "1709(3), to prescribe the course of study and to regulate the admission of pupils and their transfer from one class to another. Consistent with that authority, boards have the power to place students in particular classes (Appeal of J. K. and M. B., 40 Ed Dept Rep ___, Decision No. 14,500; Appeal of Dawn H., 39 id. 635, Decision No. 14,336; Appeal of Reid, 32 id. 587, Decision No. 12,922). The Commissioner will not substitute his judgment for that of a board of education with respect to student placement, absent evidence that the board has acted in an illegal, arbitrary or capricious manner (Appeal of J. K. and M. B., supra; Appeal of Dawn H., supra; Appeal of Reid, supra). In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he or she seeks relief and the burden of demonstrating a clear legal right to the relief requested (8 NYCRR 275.10; Appeal of J. K. and M. B., supra; Appeal of a Student Suspected of Having a Disability, 40 Ed Dept Rep 75, Decision No. 14,425).

The record before me indicates that, in making class assignments each year, respondent applies certain criteria such as: student combinations that should not be placed together, male/female ratios, academic ability, class size, discipline issues, and the special needs of students. In determining petitioners' son's class assignment, respondent considered the student's needs - assigning him to a teacher who offered a structured classroom environment and had past experience teaching students with similar needs. Respondent also balanced the number of high needs students among its three third grade teachers. Thus, the record indicates respondent's decision was rationally based and was not arbitrary and capricious.

To the extent that petitioners also allege that, because of his disability, their son requires a certain teacher to benefit educationally and that denial of their request for a specific class assignment constitutes denial of their son's right to a free appropriate public education ("FAPE"), they are required to exhaust their administrative remedies under the Individuals with Disabilities Education Act and Education Law "4404. If petitioners believe that their son's educational placement is inappropriate to address his education needs as a student with a disability and is a denial of FAPE, petitioners may request an impartial hearing pursuant to Education Law "4404(1) and 8 NYCRR "200.5(i) and, if they are dissatisfied with the decision of the hearing officer, they may seek review by the State Review Officer pursuant to Education Law "4404(2) (Appeal of a Student Suspected of Having a Disability, supra; Appeal of a Student with a Disability, 39 Ed Dept Rep 127, Decision No. 14,192).