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90-25

Application of a CHILD WITH A HANDICAPPING CONDITION, by his parent, for review of a determination of a hearing officer relating to the educational program provided by the Board of Education of the City School District of the City of Binghamton

Appearances:

Roald R. Benjamin, Esq., attorney for petitioner

Coughlin and Gerhart, Esqs., attorneys or respondent, Carl A. Kieper, Esq., of counsel

DECISION

Petitioner appeals from the determination of an impartial hearing officer finding that the hearing officer lacked authority to enjoin respondent's committee on special education (CSE) from meeting on December 5, 1990 to consider a possible change in the placement of petitioner's son during the pendency of a hearing being held to consider the validity of psychological evaluations of the pupil which respondent had obtained. The appeal must be dismissed.

Petitioner's son was initially referred to the CSE in June, 1988. In August, 1988, the CSE recommended that the pupil be classified as learning disabled and that he be educated in a regular first grade class, with the assistance of resource room services and speech therapy, for the 1988-89 school year. Petitioner agreed with that recommendation, which was implemented by respondent. A subcommittee of the CSE met with the pupil's parents in June, 1989, to discuss a possible change in the pupil's classification to emotionally disturbed. The CSE and the parents were unable to reach agreement, and the pupil remained classified as learning disabled for the 1989-90 school year. The pupil attended a regular second grade class with supportive services for that school year.

On May 14, 1990, the parents met with the subcommittee of the CSE for an annual review of the pupil. The subcommittee referred the matter of the pupil's classification and placement to the CSE, which scheduled a meeting for June 20, 1990. On June 18, 1990, the pupil's parents obtained a temporary restraining order from the United States District Court for the Northern District of New York, which enjoined the CSE from meeting until the parents had an opportunity to submit evaluative material to the CSE and to review the pupil's file maintained by the CSE.

On June 20, 1990, the pupil's parents requested that respondent appoint an impartial hearing officer to review the psychological evaluations of the pupil performed by respondent's school psychologist during the 1989-90 school year. The hearing was held on various dates in August, September, October and December, 1990, and was scheduled to resume on January 11, 1991. By letter dated November 26, 1990, the chairperson of the CSE advised the pupil's parents that the CSE would meet on December 5, 1990, to review the pupil's placement and program.

On December 4, 1990 at the hearing being held to consider the appropriateness of respondent's evaluations, petitioner made a motion to the hearing officer, requesting that the hearing officer order the CSE not to meet on the following day for the purpose of recommending a change in the pupil's placement.

After listening to oral argument from counsel for petitioner and for respondent, the hearing officer denied petitioner's motion. The hearing officer held that he lacked authority to enjoin the CSE from meeting to consider the pupil's placement, and suggested that petitioner could perhaps obtain the interim relief he sought from another forum, such as Federal Court.

The CSE met on December 5, 1990, but the pupil's parents did not attend the meeting. The CSE recommended that the pupil's program be changed to a self-contained special education class. Respondent approved the CSE's recommendation on December 11, 1990. On December 14, 1990, the pupil's parents requested that an impartial hearing be held to review the proposed change in the pupil's program.

Petitioner asks that I annul the decision of the hearing officer, invalidate the CSE's recommendation of December 5, 1990, and stay the implementation by respondent of the CSE's recommendation until said recommendation can be reviewed.

I find that I need not reach the issue of the authority of a hearing officer to enjoin a meeting of a CSE, because subsequent events have made the issue moot. The record before me reveals that on December 19, 1990, respondent commenced an action against the pupil's parents in the United States District Court for the Northern District of New York, seeking an order of the Court authorizing respondent to change the pupil's program, notwithstanding the pendency of petitioner's request for a review by a hearing officer of the decision by the CSE. The Court granted a temporary restraining order allowing respondent to change the pupil's program to that recommended by the CSE, as of January 2, 1991. Respondent's counsel represents that, on January 11, 1991, the Court granted respondent's request for a preliminary injunction allowing respondent to continue the pupil's placement in the special class recommended on December 5, 1990 by the CSE pending administrative review of the CSE's recommendation. Petitioner has not disputed respondent's claim that it has obtained a preliminary injunction.

Federal and State law require that pupils with handicapping conditions remain in their then current educational placements pending the completion of proceedings to review proposed changes in placements, unless the parents and school authorities agree to alternative placements (20 USC 1415 [e][3]; Education Law Section 4404 [4]). In Honig v. Doe et al., 484 U.S. 305, the Supreme Court held that, in appropriate cases, school officials may seek injunctive relief from a Court to overcome the statutory presumption in favor of maintaining the current placements of pupils.

Respondent has complied with the requirement of Honig v. Doe et al., that it obtain Court authorization to change the pupil's program and/or placement during the pendency of an administrative proceeding to review the CSE's recommendation to change the pupil's program from a regular education class to a special education class. Therefore, petitioner's request that I enjoin respondent from placing the pupil in that special education class must be denied. The appropriateness of the CSE's recommendation is now the subject of an impartial hearing. There is no basis upon which I could, or should, invalidate the recommendation in advance of a hearing officer's determination.

THE APPEAL IS DISMISSED.

Dated: Albany, New York

January 24, 1991                                                                                                               HENRY A. FERNANDEZ