The State Education Department
State Review Officer

No. 05-036

 

 

 

 

 

Application of the NEW YORK CITY DEPARTMENT OF EDUCATION for review of a determination of a hearing officer relating to the provision of educational services to a child with a disability

 

 

Appearances:
Hon. Michael A. Cardozo, Corporation Counsel, attorney for petitioner, Mariam Mahmood, Esq., of counsel

 

Advocates for Children of New York, Inc., attorney for respondent, Randee J. Waldman, Esq., of counsel

 

 

 

DECISION

 

            Petitioner, the New York City Department of Education, appeals from the decision of an impartial hearing officer which ordered that any and all documents contained in the student’s records regarding a superintendent’s suspension, sustained by petitioner’s determination dated January 27, 2005, shall be expunged.  The appeal must be sustained.

 

Petitioner appeals from an impartial hearing officer’s decision issued on February 22, 2005 after an impartial hearing was held on January 26, 2005 and February 4, 2005.  Respondent’s son was 11 years old and attending the fourth grade at one of petitioner’s public schools at the time of the impartial hearing (Tr. p. 18; IHO Decision, p. 2).    The student's eligibility for special education programs and services and classification as a student with a learning disability (LD) are not in dispute (Parent Ex. D-1; Dist. Ex. 1-1; see 8 NYCRR 200.1[zz][6]).

 

The record reveals that the student was suspended twice.1 The first suspension, a principal’s suspension, commenced on November 22, 2004 and resulted in removal from his regular classroom between November 22, 2004 and December 9, 2004 (Tr. p. 77).  On December 20, 2004 the student received a superintendent’s suspension from school arising from an incident that occurred on December 10, 2004 (Tr. p. 80).  On January 13, 2005 a Committee on Special Education (CSE) conducted a Manifestation Determination Review (MDR)2 and concluded that the student’s behavior was not a manifestation of his disability (Tr. pp. 87, 98; Dist. Ex. 20-8, Dist. Ex. 25 at p. 3).  On January 14, 2005 and January 27, 2005 petitioner issued decisions sustaining the suspension, the latter indicating that a MDR had concluded that the child’s behavior was not a manifestation of his disability (Dist. Exs. 24, 25; Tr. pp. 77-85).  The student was reinstated to school on January 21, 2005 (Dist. Ex. 24). Cumulatively, the student missed 18 days from the classroom as a result of the two suspensions (Tr. p. 21). 

 

By letter dated January 14, 2005, respondent requested an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1400 et seq.) seeking an invalidation of the MDR, an expungement of the student’s suspension records, reinstatement of the student into his prescribed special education program, compensatory services in the form of individualized instruction, an independent neuropsychological evaluation at public expense, and a “Nickerson letter” (Parent Ex. A). 

 

At the impartial hearing below, the parties entered into the following stipulation:  1) the December 10, 2004 incident that led to the superintendent’s suspension was a manifestation of the student’s disability; 2) respondent’s request for compensatory services in the form of individualized instruction at the prevailing market rate was withdrawn pending further discussion between the parties; 3) respondent could obtain an independent neuropsychological evaluation at public expense; and 4) petitioner would issue a “Nickerson letter” to respondent (IHO Decision, pp. 2-3).  The only issue that remained was whether the student’s record of the December 10, 2004 superintendent’s suspension should be expunged (IHO Decision, p. 3).3

 

  The impartial hearing officer ordered that any and all documents contained in the student’s records regarding the superintendent’s suspension be expunged (IHO Decision, p. 7). 

 

On appeal, petitioner contends that the impartial hearing officer acted beyond the scope of her authority in ordering that the student’s suspension records be expunged from the student’s record and that the remedy for a parent who seeks to have a superintendent's suspension expunged from the student's record is provided for in 34 C.F.R. § 300.567.   Respondent asserts that the impartial hearing officer had authority to rule on her request for expungement as it was premised on violations of the IDEA and that the impartial hearing officer had broad discretion to fashion any relief necessary to insure that the student is provided with a free appropriate public education (FAPE).

 

The IDEA provides for impartial hearings and State-level reviews in matters relating to the identification, evaluation or educational placement of children, or the provision of a FAPE (20 U.S.C. § 1415 [f][g]). However, a separate portion of the IDEA, 20 U.S.C. § 1417 (c), requires the Secretary of Education to promulgate regulations for the protection of the rights and privacy of parents and students in accordance with the provisions of the Family Educational Rights and Privacy Act (FERPA) (see 20 U.S.C. § 1232g). The relevant federal regulations under the IDEA (34 C.F.R. §§ 300.567-570) prescribe a specific procedure for challenging alleged inaccuracies in students’ educational records. Upon the request of a parent, a school district must render a decision and then provide an opportunity for a hearing to challenge information in a student's records (id.). However, the IDEA regulations (34 C.F.R. § 300.570) provide that such hearings are to be conducted in accordance with the procedures specified in 34 C.F.R. § 99.22, rather than the hearing procedures for other kinds of claims asserted under the IDEA, which are to be conducted pursuant to 34 C.F.R. §§ 300.506-510. If, after a hearing, a board of education declines to amend a student's records, the student's parents have the right to place a statement disagreeing with the board's decision in the student's records (34 C.F.R. § 300.569[b]).

 

Insofar as the impartial hearing was commenced pursuant to the IDEA (Parent Ex. A-1; IHO Decision, p. 2) and all issues raised as alleged violations of the IDEA in respondent’s hearing request were settled by stipulation between the parties during the course of the hearing and before the impartial hearing officer’s decision (IHO Decision, pp. 2-3), I find, under the circumstances presented in this case, that the impartial hearing officer erred in proceeding to determine the issue of expungement of the student’s suspension records (Application of a Child with a Disability, Appeal No. 01-099; Application of a Child with a Disability, Appeal No. 94-9; see also Federal Policy and Guidance, Letter to Parent re: Amendment of Special Education Records, Aug. 13, 2004, at http://www.ed.gov/policy/gen/guid/fpco/ferpa/library/parent.html4).

 

I have considered the parties’ remaining contentions and I find them to be without merit.

 

            THE APPEAL IS SUSTAINED.

           

IT IS ORDERED that the impartial hearing officer’s decision is annulled. 

 

 

 

 

Dated:

Albany, New York

 

__________________________

 

June 30, 2005

 

PAUL F. KELLY

STATE REVIEW OFFICER

 

 

 

1  The impartial hearing officer’s findings of fact are supported by the record and I adopt them.

 

2   See 34 C.F.R. § 300.523; 8 NYCRR 201.4.

 

3  The impartial hearing officer concluded that the evidence supported the stipulation to reverse the determination that the behavior was not a manifestation of the child’s behavior (IHO Decision, p. 5). In a well-reasoned discussion, the impartial hearing officer concluded that the superintendent’s suspension was effectuated in violation of the Regulations of the Commissioner of Education (8 NYCRR 201.07) and that the MDR determination was in error (8 NYCRR 201.4 [c]). I agree. 

 

4  Respondent cites Application of a Child with a Disability, Appeal No. 02-064, in support of her argument that the impartial hearing officer properly expunged the student’s educational records. However, in light of the U.S. Department of Education’s Family Policy Compliance Office subsequent Letter to Parent, dated August 13, 2004, I am persuaded that, given the facts of the instant case, the expungement of records would have been more appropriately addressed through 34 C.F.R. §  300.567.