University of the State of New York Emblem

The State Education Department
State Review Officer

No. 93-30

Application of a CHILD WITH A DISABILITY, by his parent, for review of a determination of a hearing officer relating to the provision of educational services by the Board of Education of the City School District of the City of New York

Appearances:

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Sergio J. Tuero, Esq., of counsel

DECISION

Petitioner appeals from the decision of an impartial hearing officer which upheld a determination by the staff and the principal of respondent's Evander Childs High School to change the child's classes from the twelfth grade to the ninth grade within respondent's modified instructional services-II (MIS-II) program. The appeal must be dismissed.

Petitioner's child, who is 18 years old, is classified as emotionally disturbed. His classification is not in dispute. The child was initially referred to the committee on special education in the 1981-82 school year. The record does not reveal the child's educational program through elementary school. During the first semester of the 1989-90 school year when the child was in the ninth grade, the child received instruction in respondent's homebound program. For the remainder of the school year, the child was enrolled briefly in respondent's P.S. 754 and then in P. 12. From October, 1990 to May, 1991, the child attended the Karafin School, which is a State approved school for children with disabilities. During the 1991-92 school year, the child received instruction at home from respondent, until December, 1991. There is no evidence in the record of the child's achievement during this period of time. On January 28, 1992, the child was enrolled in a North Carolina high school where he remained until June, 1992. Thereafter, the child returned to New York City.

In October, 1992, respondent's committee on special education (CSE) recommended that the child be enrolled in respondent's specialized instructional environment-VII (SIE-VII) program. Petitioner did not accept the CSE's recommendation, and requested that an impartial hearing be held. Petitioner, who was represented by an attorney, negotiated a settlement with respondent, pursuant to which the child was to enroll in a MIS-II program in respondent's Evander Childs High School. During the settlement process, petitioner's attorney and the CSE chairperson asked an administrator in the office of the Superintendent for Bronx High Schools to review a transcript which purported to reflect the child's program and achievement from September, 1989, when the child entered ninth grade, through June, 1992, when the child had reportedly completed eleventh grade in North Carolina. By letter dated January 15, 1993, the administrator informed petitioner's attorney that, upon review of the proffered transcript, the child needed an additional nine credits, plus two semesters of physical education, to graduate from high school. The administrator further informed the attorney that the child had not taken any of the six Regents Competency Tests upon which a child must receive a passing score in order to receive a local diploma in New York State (8 NYCRR 100.5 [a][4]). The administrator also advised the attorney that an assessment of the transcript by the high school staff might differ slightly from his, and that the high school principal's assessment would be controlling.

In a stipulation dated February 6, 1993, the parties agreed that the child would be placed in the MIS-II program at the Evander Childs High School, and would remain in such program, provided that he complied with certain behavioral and attendance standards. The stipulation further provided that the CSE would re-evaluate the child prior to the end of the 1992-93 school year to recommend an appropriate placement for him for the 1993-94 school year, if necessary. The stipulation does not specify the child's grade. The relevant portion of the stipulation in this appeal reads as follows:

"[The child] needs 8 credits to graduate and it is anticipated that he will graduate in the 1992-93 school year, plus summer school, if necessary."

At the hearing in this proceeding, a school administrator testified that respondent assigns one credit for each semester of a subject and requires 40 credits for high school graduation, which is slightly more than the State requirement of 18.5 units of year-long study for a local high school diploma (8 NYCRR 100.5 [a][2]). The stipulation was premised upon the parties' belief that the child had 32 credits.

On February 10, 1993, the child entered the MIS-II program. He was assigned to twelfth grade classes within the program based upon the information set forth in a transcript from the North Carolina high school. The transcript purports to show that the child received grades of at least 65 and academic credit for his work in the ninth and tenth grades in respondent's schools and at the Karafin School, as well as credit for the eleventh grade in the North Carolina school. Respondent's staff did not verify the accuracy of the information set forth on the North Carolina transcript at the time of the child's admission to the Evander Childs High School.

On March 4, 1993, petitioner met with a guidance counselor to discuss whether the child had received academic credit for all of his work. On March 5, 1993, the guidance counselor received a copy of the child's academic record from respondent's homebound program, which revealed that the child had received the grade of 40 in each of his subjects and no academic credit for his work during the first semester of the 1989-90 school year. The guidance counselor also obtained the child's academic record from respondent's P. 12, which the child had attended in the second semester of the 1989-90 school year. The child had received no academic credit for his work in P. 12. In a letter dated March 9, 1993, which was sent to the guidance counselor, the director of the Karafin School stated that the child had received no academic credit while attending the Karafin School during the 1991-92 school year.

At the hearing in this proceeding, the guidance counselor in the Evander Childs High School testified that she had discussed the child's transcript which had been prepared in the North Carolina high school in a telephone conversation with a guidance counselor of the latter high school. The counselor in the North Carolina school reportedly attributed the transcript data relating to the 1989-90 and 1990-91 school years to an individualized education program (IEP) and records from the Karafin School and respondent's homebound program which had been provided to her when the child enrolled in the North Carolina high school. At the request of respondent's guidance counselor, the North Carolina guidance counselor forwarded a certified copy of the transcript which she had prepared. The certified transcript presented information about the 1989-90 and 1990-91 school years which was identical to the information in the transcript which was reviewed by respondent's administrator in January, 1993 and the high school staff upon the child's entrance into respondent's high school. However, the latter transcript set forth the child's purported grades for both semesters of the 1991-92 school year and included a grade of 70 in English, while the certified transcript reported the child's grades for only one semester, and did not report that he had earned any credit for the 1991-92 school year.

As a result of the information which respondent's guidance counselor received subsequent to the child's entry into respondent's Evander Childs High School, respondent's staff concluded that the child did not meet the criteria for placement in the twelfth grade because he had received only five credits for high school-level work. In a letter to petitioner, dated March 17, 1993, the guidance counselor, with the approval of the high school principal, advised petitioner that the child would be reassigned to a ninth grade homeroom and classes within the MIS-II program in the high school. At the hearing, petitioner testified that she did not receive the guidance counselor's letter. On March 22, 1993, the child's classes were changed to the ninth grade.

Petitioner requested that an impartial hearing be conducted. The hearing commenced on April 16, 1993. In an interim order dated April 22, 1993, the hearing officer directed respondent to reassign the child to twelfth grade classes pending the hearing officer's final decision. The hearing concluded on May 7, 1993. In a decision dated June 21, 1993, the hearing officer found that the portions of the high school transcript from North Carolina relating to the 1989-90 and 1990-91 school years were false, and that the parties had relied upon the erroneous information set forth in the transcript when they entered into the stipulation by which the child entered the MIS-II program in respondent's Evander Childs High School. Rejecting petitioner's argument that respondent was bound by the provisions of the parties' stipulation, the hearing officer held that the stipulation provisions relating to the credits which the child needed to graduate from high school were unenforceable because of the parties' mutual mistake about the accuracy of the transcript, and vacated his interim order requiring the child to be placed in the twelfth grade. The hearing officer directed respondent to evaluate the child's proficiency in the ninth and tenth grade subjects which he had taken and to award him credit for such subjects, if appropriate. The hearing officer further directed respondent, to the extent feasible, to offer the child an opportunity to become proficient in the ninth and tenth grade subjects, without extensive classroom attendance, and directed the CSE to prepare a new IEP to reflect the child's eleventh grade achievements.

Petitioner, who was represented by an attorney in the hearing but appears pro se in this appeal, asserts that there are factual errors in the hearing officer's decision. She asserts that the hearing officer erred in finding that the child had attended respondent's P. 12, and further asserts that the child has never attended P. 12. At the hearing in this proceeding, respondent introduced into evidence an academic record of the child which had been maintained in P. 12 and which reported that the child had attended that school from January to June, 1990. Petitioner's attorney cross-examined one of respondent's witnesses about the record from P. 12. At no time during the hearing did petitioner raise the issue of the child's alleged non-attendance at P. 12. In this appeal, petitioner has not offered any evidence of the child's attendance at any other school, or any other explanation of where the child was, during the period in question. I find that there is no basis in the record before me for annulling the hearing officer's decision with regard to the child's attendance at P. 12.

Petitioner also asserts that respondent failed to notify either her or her attorney of its determination that the child's purported credits for the ninth and tenth grades were not valid. The child's guidance counselor testified that she had personally mailed a letter to petitioner on March 18, 1993, in which she explained the basis for respondent's conclusion that the child had obtained only five credits. Although there is no proof in the record of petitioner's receipt of the letter, I find that respondent attempted to notify petitioner of its determination and the action it would take.

Although petitioner refers to the hearing officer's determination that respondent was not bound by the terms of its stipulation with petitioner, she does not specifically challenge his determination. In any event, I must find upon the record before me that the hearing officer had a rational basis for concluding that the parties had relied upon the erroneous high school transcript from North Carolina in stipulating that the child needed only eight credits to be eligible for graduation. Courts are generally reluctant to grant parties relief from their stipulations because to do so would undermine the well established policy favoring non-judicial resolution of legal claims (Orlich v. Helm Bros. Inc., 160 AD 2d 135). However, relief may be granted where there is sufficient cause to invalidate a contract, eg., fraud, collusion, mistake or accident (Hallock v. State, 64 NY 2d 224). In this instance, I concur with the hearing officer's holding that respondent was not bound because of the parties' mutual mistake (McFarlane v. McFarlane, 148 AD 2d 589).

Although there is no basis in the record for annulling the principal's determination about the child's transcript, I note that there is no evidence in the record of the CSE's involvement in the reassignment of the child from twelfth to ninth grade classes. The special education program of a child with a disability must be set forth in the child's IEP (8 NYCRR 200.4 [c][2]). It is the CSE's responsibility to review and alter a child's IEP. It is not possible to ascertain what, if any, changes in the IEP were required by the child's reassignment to ninth grade classes, because his IEP is not in the record of this appeal. However, respondent must ensure that in the future the CSE revises the child's IEP to reflect his present educational program.

THE APPEAL IS DISMISSED.

Dated:             Albany, New York                                     _________________________
                        September 3, 1993                                               HENRY A. FERNANDEZ