The State Education Department
State Review Officer

No. 04-041





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 Ellicottville Central School District


Andrew K. Cuddy, Esq., attorney for petitioner

Hodgson Russ LLP, attorney for respondent, Jeffrey J. Weiss, Esq., of counsel


        Petitioner appeals from the decision of an impartial hearing officer which found that the individualized education program (IEP) recommended by respondent for the 2003-04 school year for petitioner’s son was appropriate. The appeal must be dismissed.

        At the time of the hearing, petitioner's son was an eighth grade student in the Ellicottville Central School District (district) (Dist. Ex. 13) and classified by the district's Committee on Special Education (CSE) as a student with a learning disability (Dist. Exs. 5, 13, 31). The student’s classification is not in dispute. Recent psychological testing indicated cognitive ability in the low average range, and the student has reportedly struggled with both math and reading concepts throughout his academic career (Dist. Ex. 31). At the time of the hearing, the student read at the third grade level (Tr. p. 135).

        The district has an academic eligibility policy, which requires students to maintain satisfactory grades in a majority of their courses in order to participate in extracurricular activities (Tr. pp. 142-43; Dist. Ex. 24). As of October 20, 2003, the student was failing three subjects (Tr. p. 81; Dist. Ex. 39). At that time, respondent determined that the student was ineligible to participate in extracurricular activities (Tr. pp. 80-83).

        A CSE had convened on March 24, 2003 to develop an IEP for the student for the 2003-04 school year (Dist. Exs. 5, 28). The CSE reconvened on December 18, 2003 and revised the IEP (IHO Ex. 1, Dist. Ex. 13). The December 2003 IEP indicated that the student's social development, physical development, and management needs were within normal limits. With regard to his academic needs, the IEP indicated that the student's performance was "below average in reading and arithmetic and deficient in spelling." The CSE recommended placement in modified classes for English and social studies, a foreign language exemption, and resource room services three times a week for 40 minutes. The student's goals and objectives all related to reading (Dist. Ex. 13). The CSE scheduled another meeting for January 19, 2004 to further develop the goals and objectives and to discuss whether petitioner's son should be exempt from the district's academic eligibility policy (Dist. Ex. 12).

        The CSE met on January 15, 2004. The administrative record form from that meeting indicates that the CSE reviewed both the student's program and his academic eligibility, but did not make changes to the IEP (Dist. Ex. 8). In January and February 2004, a functional behavioral assessment (FBA) was performed. During the assessment, the student indicated that academic work was too difficult for him. Although his teachers described him as having low self-esteem, they also stated that his strengths included his interpersonal skills and his "great sense of humor." The teachers indicated that the student was not easily influenced by peers, and they opined that his behavior might improve if his ability to read improved (Dist. Ex. 40).

        In a letter dated February 21, 2004, petitioner's attorney requested an impartial hearing to challenge the appropriateness of the student's IEP. Petitioner asserted that the IEP did not meet her child's needs, staff were not qualified, her son's reading disability was not being properly addressed, IEP goals and objectives were not appropriate, the CSE was not properly composed, the CSE did not review evaluations, the Board of Education did not review the IEP or the evaluations upon which it was based, appropriate evaluations were not completed, present levels of performance were not accurately stated on the IEP, the CSE meeting was not conducted in compliance with regulations, the development of the IEP was not in compliance with regulation, the district did not implement the IEP, and the district did not provide appropriate related services (Dist. Ex. 5).

        On April 22, 2004, the district submitted a motion to the hearing officer requesting that she issue an order limiting the hearing to the issue of "… whether the student's IEP should contain a statement granting him access to all extracurricular activities, thereby exempting him from the district's academic eligibility policy." In addition, the district's motion included a request for the following relief: first, that the student's current IEP be annulled and the matter be remanded to the CSE to develop an IEP that would include, among other things: the student's current levels of performance, the student's current needs, appropriate and measurable goals and objectives, specialized reading instruction one period a day for 40 minutes, one period of resource room daily, and direct consultant teacher services each week, with one of those hours provided during math class; second, that the CSE review the FBA; third, that the CSE determine whether additional evaluations of the student are needed; fourth, that the district conduct a reading evaluation of the student within 30 days, provided the parent consented; and fifth, that the district pay for an independent psycho-educational evaluation of the student by a particular psychologist, that the district provide authorization for the evaluation within 7 days, that the district reimburse the parent's reasonable costs for transporting the student to and from the evaluation, and that a report of the evaluation be provided directly to the district upon completion (IHO Ex. 1). Petitioner agreed to the relief sought in respondent's motion (IHO Decision, p. 5).

        The hearing took place on April 27, 2004. Petitioner requested determinations that her child had been inappropriately excluded from the general education setting and that the least restrictive environment (LRE) component of the IEP had not been implemented (Tr. pp. 60, 61). She asked the hearing officer to order the CSE to reconvene to determine whether the student's social and emotional needs required him to participate in extracurricular activities (Tr. p. 62). The district asserted that the student's social and emotional needs did not require participation in extracurricular activities (Tr. p. 44).

        The hearing officer issued her decision on May 28, 2004. She found that the LRE component of the IEP had been "… properly set forth and properly implemented and that the student did not have social and emotional needs that required participation in extracurricular activities." Petitioner appeals from the impartial hearing officer’s decision, asserting that the LRE component of the IEP had not been properly implemented. Petitioner seeks an order directing the CSE reconvene to determine whether exclusion from any particular extracurricular activity is a necessary component of the student's program, that the student's IEP specify any academic intervention services to be provided, that academic intervention service providers be identified on the IEP, and that the district's academic eligibility policy be reviewed because it violates the rights of all disabled students in the district. Finally, petitioner requests the opportunity to present an oral argument if the relief sought is not granted.

        The purpose of the Individuals with Disabilities Education Act (IDEA) is to ensure that children with disabilities are provided a free appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2d Cir. 1987]). A FAPE consists of specialized education and related services embodied in an IEP (34 C.F.R. § 300.13). To meet its burden of showing that it provided a FAPE to an individual child, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). The recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1] and 200.1[cc]).

        The LRE requirement ensures that students with disabilities participate in the same activities as nondisabled students to the "maximum extent appropriate" (20 U.S.C. § 1412[a][5[A]; 34 C.F.R. § 300.550[b][1]; see 8 NYCRR 200.2[b]). In order to ensure that students with disabilities participate in the same activities as nondisabled students to the maximum extent appropriate, each public agency is required to "take steps to provide nonacademic and extracurricular services and activities in the manner necessary to afford children with disabilities an equal opportunity for participation in those services and activities" (34 C.F.R. § 300.306[a], see 8 NYCRR 200.2[b][1]) (emphasis added). The regulatory requirement that students with disabilities be afforded an equal opportunity for participation does not require that the services and activities actually be provided to students with disabilities (Letter to Anonymous, 17 IDELR 180 [OSEP 1990]). However, participation in extracurricular activities can be included on an IEP to provide a FAPE when appropriate to meet a student’s needs (id.). If a student's needs are such that a FAPE cannot be provided without participation in non academic and extracurricular services and activities, then a student's program should include participation in such activities (see Dennin v. Connecticut Interscholastic Athletic Confer., 913 F. Supp. 663 [Conn. 1996]; Lauderdale County Board of Education, 36 IDELR 178 [SEA AL 2002]). If a student does not have such needs, then that student may be subject to an academic eligibility policy (see Susquenhanna Township Sch. Dist., 20 IDELR 35 (OCR PA 1993).

        The record does not demonstrate that petitioner's son had needs that required participation in athletics or other extracurricular activities. The current IEP and the two previous IEPs entered into evidence describe the student's social/emotional functioning as within normal limits (Dist. Exs. 13, 28, 30). The CSE Chairperson testified that she did not recall any discussion of social/emotional concerns at the student's annual review (Tr. p. 97). She also indicated that she did not recall anyone raising concerns about the student's social/emotional needs at any time between July 2002 and the time of the hearing (Tr. pp. 117-19). The school psychologist testified that the CSE did not recommend counseling because it was not necessary for the student to achieve his goals and objectives (Tr. p. 167). The student's resource room teacher did suggest that the student had low self-esteem. She also testified that the student frequently stated that he was "stupid" and that he expressed frustration because academics were difficult for him (Dist. Ex. 40). The school psychologist testified that the student would sometimes make comments consistent with an individual who was frustrated with his disability (Tr. p. 142). The psychologist did not, however, believe that the student had social/emotional needs that required participation in extracurricular activities (Tr. pp. 147-48).

        The student's mother testified that the student was "humiliated" by his exclusion from extracurricular activities and that this affected his already low self-esteem and also affected his motivation (Tr. pp. 211, 214). However, the school psychologist questioned the correlation between a student's self-esteem and his eligibility to participate in extracurricular activities (Tr. p. 143). The school psychologist noted that self-esteem generally rises with competence and that improvement in reading ability would likely have a positive effect on the student's self-esteem (Tr. p. 144). He further opined that a student was not likely to become less motivated to complete assignments while ineligible for extracurricular activities (Tr. p. 145).

        A family member submitted an affidavit in which she opined that the student's "exclusion from extracurricular activities reinforced his low self-esteem and caused him to shut down" (Parent Ex. 1). The record does suggest that the student may have been upset and embarrassed by academic probation (Tr. pp. 211-12). However, the record reveals that he began to avail himself of available tutoring services and accepted assistance with his homework during the period of ineligibility (Tr. pp. 245-46). The mother testified that this additional assistance helped her son "dramatically" (Tr. p. 245). The school psychologist testified that the student's academic performance improved while he was ineligible to participate in extracurricular activities (Tr. p. 147). During his period of ineligibility, the student reduced the number of classes he was failing (Tr. pp. 84, 246). At the time of the hearing, the student was receiving academic assistance and was eligible to participate in extracurricular activities (Tr. p. 146). I find that respondent demonstrated that the student’s special education needs, at the time the IEP was formulated, did not require that the IEP provide that the student participate in extracurricular activities and that he be exempt from the academic eligibility policy in order to receive a FAPE.

        Turning to petitioner's other claims, petitioner asserts that the student's IEP should have specified the academic intervention services that were offered and specified the name of the person who would provide the services. Here the academic intervention services, as described and provided by respondent, were not special education services, therefore neither the services nor the provider needed to be included on the student's IEP (Application of a Child with a Disability, Appeal 98-47; Letter to Montano, 18 IDELR 1232 [OSEP 1992]). However, I remind respondent that an IEP must include a statement of the special education, related services and supplementary aids and services that will be provided for the child to participate in extracurricular and other nonacademic activities (20 U.S.C. § 1414[d][1][A][iii]; 34 C.F.R. 300.347[a][3][ii]; 8 NYCRR 200.4[d][2][iv][b]). Petitioner also asserts that the district's academic eligibility policy violates the rights of all disabled students in the district and asks that I issue an order directing that the policy be reviewed. Petitioner testified that she believed that the academic eligibility policy violated the rights of classified students (Tr. p. 210). Nevertheless, she did not ask the hearing officer to address this issue. I find that this issue is beyond the scope of my review because it was not properly raised below (Application of the Bd. of Educ., Appeal No. 02-024; Application of a Child with a Disability, Appeal No. 01-010).

        Petitioner requests the opportunity to present an oral argument as part of her petition for review. A State Review Officer may direct that oral arguments be made (8 NYCRR 279.10). The circumstances of this case do not require oral argument; therefore, petitioner's request for oral argument is denied.

        I have considered petitioner's remaining contentions and find them to be without merit.





Dated: Albany, New York   __________________________
  August 17, 2004   PAUL F. KELLY