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Decision No. 15,899

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the East Meadow Union Free School District regarding discrimination.

Decision No. 15,899

March 25, 2009)

Jaspan Schlesinger Hoffman LLP, attorneys for respondent, Carol A. Melnick, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the superintendent and a summer school principal (“principal”) employed by the Board of Education of the East Meadow Union Free School District (“respondent”) denying her son access to a hearing dog during administration of a Regents examination.  The appeal must be dismissed.

Petitioner’s son, a hearing impaired student with a disability, attended 10th grade in respondent’s W. Tresper Clarke High School (“Clarke High School”) during the 2007-2008 school year.  The student attended summer school at East Meadow High School to prepare for the New York State Regents Examination in Global Studies.  Throughout the summer of 2008, pursuant to his individualized education program (“IEP”) and §504 plan, he received, among other services, an  interpreter for the hearing impaired who provided him with one-on-one assistance and the option of FM amplification.  The student was also provided with testing accommodations, including but not limited to flexibility of testing location and time, an extension of time if necessary, a one-on-one sign language interpreter, and a check for understanding of directions, questions or vocabulary to be rephrased or simplified and extended breaks.  In addition, respondent has an emergency preparedness plan procedure with specific consideration of petitioner’s son that sets forth responsibilities of staff members and procedures to insure his safety in the event of an emergency situation.

On August 13, 2008, the Global Studies examination was administered at respondent’s East Meadow High School.  On the day of the examination, petitioner’s son attempted to enter the high school building with a dog.  The principal, who was responsible for administering the Regents examinations, met the student at the main entrance and denied his request to have the dog accompany him while he took the examination.  The principal explained that no prior request or arrangements had been made for the dog’s admission.  After consulting with the superintendent, the principal told the student that he would be admitted to the examination without the dog.  Petitioner’s son then contacted the police but they declined to be involved.  Thereafter, the student entered the school building without the dog to take the examination.  The student received testing accommodations pursuant to his IEP and §504 plan, including a one-on-one sign language interpreter and a flexible testing time and location, and passed the examination. 

This appeal ensued.  Petitioner’s request for interim relief was denied.

Petitioner contends that the superintendent and principal violated federal and State anti-discrimination laws and seeks a determination that students who utilize guide dogs, hearing dogs or service dogs be granted access to all New York State Education Department approved Regents examination testing sites.

Respondent denies that the principal and superintendent violated anti-discrimination laws and contends that the appeal must be dismissed as moot.  Respondent also contends that petitioner seeks a declaratory judgment which the Commissioner does not have authority to issue.  Respondent asserts that petitioner lacks standing to seek relief on behalf of other students.  Respondent further asserts that there are other proceedings involving the same issues and the same parties which are currently pending in court. 

Respondent further contends that the Commissioner lacks jurisdiction to decide the appropriateness of the student’s IEP developed by respondent’s committee on special education (“CSE”), which must be challenged before an impartial hearing officer (“IHO”) prior to State level review.  Respondent also argues that petitioner’s claims under the New York State Executive Law §296(14) and Civil Rights Law §§47(1),(2) and 47-b(1) must be dismissed as inapplicable to a school district and public school buildings.  Additionally, respondent asserts that petitioner’s failure to serve the Attorney General precludes any claim under New York State Civil Rights Law §§40-c (2) and 40-d.

Initially, I must address petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  On February 13, 2009, the principal of Clarke High School submitted an affidavit, served by mail on petitioner on February 12, 2009, indicating that two district employees were advised by the student and/or his father that the student no longer uses a hearing dog.  Petitioner did not respond to or dispute the contents of the principal’s affidavit.  Accordingly, I find that the matter is moot.

The appeal must also be dismissed because it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of L.A., et al., 46 Ed Dept Rep 450, Decision No. 15,561; Appeal of Vaught, 46 id. 398, Decision No. 15,544; Appeal of Pochat, 45 id. 343, Decision No. 15,342).  Petitioner seeks a declaratory ruling regarding the application of several federal and State laws regarding the use of guide dogs, hearing dogs, or service dogs at all sites approved to administer Regents Examinations, without exception, and regardless of circumstances.

In addition, the appeal must be dismissed to the extent petitioner asserts claims on behalf of other students. While petitioner has standing to bring this appeal on behalf of herself, she lacks standing to assert the rights of others (Appeals of Giardina and Carbone, 43 Ed Dept Rep 395, Decision No. 15,030; Appeal of Gilmore and Jordan-Thompson, 42 id. 334, Decision No. 14,874).

The appeal must also be dismissed for lack of jurisdiction.  The record reflects that petitioner’s son receives services pursuant to an IEP.  The parties’ dispute regarding the appropriateness of the student’s IEP is governed by Individual with Disabilities Education Act (“IDEA”), 20 USC §1415, and Education Law §4404(1)(a).  The proper avenue of redress of such claims is to request an impartial hearing (Appeal of a Student with a Disability, 48 Ed Dept Rep 112, Decision No. 15,808; Appeal of a Student with a Disability, 46 id. 101, Decision No. 15,453).  The student also receives accommodations pursuant to a §504 plan.  Enforcement of §504 of the Rehabilitation Act of 1973 is within the jurisdiction of the federal courts, the U.S. Department of Justice and the U.S. Department of Education and may not be obtained in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 108, Decision No. 15,806; Appeal of a Student Suspected of Having a Disability, 40 id. 75, Decision No. 14,425; Appeal of a Student with a Disability, 39 id. 752, Decision No. 14,369).  Therefore, petitioner is obliged to exhaust the administrative remedies under the IDEA for her federal claims regardless of their statutory basis, including the IDEA, §504, the American with Disabilities Act and 42 USCA §1983 (seeCave v. East Meadow Union Free School District, 514 F3d 240 [2d Cir. 2008]).

Finally, I note that there is a case currently pending in State court, arising from the August 13, 2008 incident, concerning the issue of whether respondent discriminates against students with disabilities who use guide, hearing and/or service dogs in violation of New York State Executive Law §§296.4 and 296.14 (East Meadow Union Free School District v. The New York State Division of Human Rights, Index No. 2008-04815 [App Div 2d Dept 2008]). 

In light of this disposition, I need not address the parties’ remaining contentions.