95-038

Petitioner appeals from the determination of an impartial hearing officer that a sufficient basis exists for the evaluation of petitioner's son by respondent's committee on special education (CSE) without petitioner's consent, in order to ascertain whether the child has an educational disability for which he should receive special education services. The appeal must be sustained.

Petitioner's son is eleven years old. At the time of the hearing in this proceeding, the child was enrolled in a regular education sixth grade class in respondent's Peter Rouget Middle School in Brooklyn, New York. The child attended a preschool program before entering kindergarten in P.S. 10 during the 1988-89 school year. The child's cumulative record reveals that the child's personal development in kindergarten was found to be in need of improvement. While in the first grade during the 1989-90 school year, the child made satisfactory academic progress, but was described as needing improvement in several aspects of his personal-social development. The child was transferred from one second grade class to another during the 1990-91 school year. His cumulative record indicates that in each second grade class the child continued to make satisfactory academic progress, while his personal-social development was described as needing improvement or unsatisfactory. On standardized, group administered achievement tests, the child attained scores at the 68th percentile in reading and the 77th percentile in mathematics.

While in the third grade in P.S. 10 during the 1991-92 school year, the child was reportedly suspended from school. The record does not reveal the basis for his reported suspension. He continued to make satisfactory academic progress, but his personal-social development was reported to be unsatisfactory. At the hearing in this proceeding, the Principal of the Peter Rouget Middle School testified that school records, which are not part of the record before me, revealed that the child had been referred to the CSE for an evaluation when he was in the third grade. The Principal further testified that an impartial hearing had been held because petitioner refused to consent to the proposed evaluation. Although an impartial hearing officer reportedly authorized the CSE to conduct an evaluation, in 1992, the child was not evaluated because he had been removed by his parents from public school in March, 1992. The child attended the private Johnson Preparatory School for the remainder of the 1991-92 school year.

In September, 1992, the child was enrolled in P.S. 107 for the fourth grade. Respondent did not attempt to implement the hearing officer's order to evaluate the child. The boy achieved satisfactory grades in each of his fourth grade subjects, except written language, mathematics, and music. The child was described as needing improvement in those three subjects. His work habits and personal-social development were reported to be unsatisfactory. In the Spring of 1993, the child's total reading score was at the 58th percentile and his total mathematics score was at the 51st percentile, in group administered, standardized achievement tests. The record reveals that respondent employed a different standardized test in 1993, than it had used to test the child in prior years. Respondent cautioned parents not to compare the 1993 results with those which were reported in prior years, because the 1993 tests used higher norms.

The child remained in P.S. 107 for the fifth grade during the 1993-94 school year. He continued to receive satisfactory grades, except in written expression, but his work habits and personal-social development were again reported to be unsatisfactory. On standardized group administered achievement tests in the Spring of 1994, the child's total reading score was only at the 4th percentile, while his total mathematics score was at the 59th percentile. The record neither discloses nor provides a basis to speculate why the child's total reading score was significantly below the score which he had received on the same standardized test in 1993.

The child matriculated at the Peter Rouget Middle School for the sixth grade during the 1994-95 school year. The child received instruction in most of his academic subjects from three teachers, who taught in instructional groups of approximately 30 children. The child's anecdotal record reveals that he was allegedly involved in fighting with other children on at least three occasions, before the middle of November. In one incident on November 7, 1994, petitioner's child allegedly borrowed a cane from one child, and struck another child with the cane. On November 10, 1994, the child allegedly hit another child in the face with a chalk eraser. He was suspended from school by the building principal for five days. When he met with petitioner on November 18, 1994, the principal advised petitioner that he intended to refer the child to the CSE.

During the first marking period of sixth grade in the 1994-95 school year, the child received grades of 75 in language arts, 85 in social studies, 60 in mathematics, 55 in science, 60 in dance, 70 in health, 65 in physical education, and 55 in literature. The principal testified at the hearing in this proceeding that the child's literature class was part of the remedial instruction provided to the child under the auspices of respondent's Chapter 1 program (see 20 USC 3801). The child's academic average for the first quarter was 66.5. Although his grades in language arts and social studies were satisfactory, the teachers of those courses commented on the child's report card about the child's poor ability to work with others and to follow class procedures. His other teachers made similar comments on his report card.

On December 6, 1994, the child reportedly assaulted another child in a school hallway. The next day, he reportedly hit another child in the face. The latter incident was reportedly resolved by referral of the two children involved to respondent's peer mediation program. With regard to the December 6 incident, petitioner was invited to meet with the principal in a "pre-suspension" meeting, but allegedly declined to meet with the principal in the latter's office. On December 9, 1994 the child allegedly dashed into a classroom and struck another child in the back. On December 14, 1994, the child allegedly punched another child in the stomach, during lunch.

On December 21, 1994, the child's guidance counselor referred the child to the CSE. The guidance counselor reported that the child was a danger to himself and others, and that his behavior was disruptive of the learning process. He noted that the child's standardized test scores had been adequate, with the exception of the 1994 reading score, but reported that the child was coming to school unprepared and was failing his courses. The guidance counselor also reported that a "behavior sheet," on which the child's behavior could be recorded each period of the day, had been used with the child, and that he, the principal and the school dean had met with petitioner on several occasions.

Petitioner declined the request of a school social worker to schedule an appointment to be interviewed for the child's social history. He also declined to consent to having the child evaluated by the CSE. Federal and State regulations provide that a child who is suspected of having a disability may not be evaluated without the consent of the child's parents, except that the board of education may initiate an impartial hearing for the purpose of having a hearing officer determine whether the child should be evaluated without the parents' consent (34 CFR 300.504 [b][3]; 8 NYCRR 200.5 [b][2]). On January 25, 1995, the Principal of the Peter Rouget Middle School and the Superintendent of Community School District No. 15 requested that an impartial hearing be held to obtain authorization from a hearing officer to evaluate petitioner's child. They noted that the child had been involved in a series of incidents, and suggested that the child was either unaware of limitations on his behavior, or too impulsive to have any regard for them. They described the child as being unconcerned about he consequences of his actions, and as being a danger to himself and others. They asserted that the child should be evaluated, so that his needs could be accurately ascertained and an appropriate educational program could be developed for him.

The child's report card for the second quarter of the 1994-95 school year, which was dated February 14, 1995, revealed that he achieved grades of 55 in language arts, 50 in social studies, 50 in mathematics, 55 in science, 60 in dance, 70 in health, 60 in physical education, and 55 in literature. The boy's academic average for the second quarter was 55.8. His language arts teacher reported that the child had difficulty remaining on task, and noted that the child had failed to complete a mid-year research project. The child's social studies teacher attributed to the child's low grade in social studies to poor grades on classroom tests, and noted that the child had disrupted the class with his poor behavior or talking. The mathematics teachers reported that the child had missed tests and classwork because of absences. The boy was absent on twelve full days during the second quarter. The child's science teacher reported that the child had earned poor grades on tests, and that his laboratory work had been unsatisfactory. The child's literature teacher reported that the boy had not completed various reports or projects, and that he had been disrespectful towards her.

The hearing in this proceeding began on February 14, 1995, but was adjourned, with the consent of the parties, until March 13, 1995. At the hearing, respondent presented three witnesses: a supervisor of special education, the Principal of the Peter Rouget Middle School, and the child's guidance counselor. The special education supervisor, who had no personal knowledge of the child, but who had reviewed the child's records, opined that the child would benefit from a special education evaluation to ascertain why he was not succeeding in school. The principal and the guidance counselor each testified about the child's behavior, and their respective attempts to discuss the child's educational problems with petitioner. The principal also testified that the child's teachers had advised him that the child was not completing most of his homework assignments, and that the child's performance in the Chapter I remedial class had been hindered by his failure to complete writing assignments, or to come to class on a regular basis. He also described a one period per week advisory class in which students met with their teachers to discuss problems related to being in the middle school. The principal testified that petitioner had declined an offer to have the child receive counseling by a psychologist of the Lutheran Medical Center in school. Petitioner conceded that the child had been involved in a number of disciplinary incidents but asserted that his son had not been treated fairly.

The hearing officer rendered her decision on April 18, 1995. She found that respondent had presented evidence which established that the child was having academic and behavioral problems, despite respondent's attempts to remediate the child's performance in school. The hearing officer held that there was a sufficient basis in the record to warrant an immediate evaluation of the child to determine whether he was eligible to receive special education services.

Petitioner asserts that his child is no different from other children, and that he has the "inalienable right to play, ruff-fight, talk back to his teacher, run in the hallways, without being cast as a mental or emotional or otherwise disturbed child." Respondent asserts that the record amply supports the hearing officer's decision.

The guidance counselor's written referral of the child to the CSE, as well as his testimony and that of the principal at the hearing, clearly demonstrate that respondent seeks to have the child evaluated because of the child's inappropriate behavior in school. The child's anecdotal record for the four-month period between September 14, 1994 and January 12, 1995 discloses that there were approximately 40 incidents of misbehavior. Although I do not agree with petitioner's assertion that the child's behavior is normal or acceptable, it does not follow that respondent has established that there is an adequate basis to evaluate the child for a possible educational disability. Inappropriate behavior does not per sesupport the evidentiary standard which respondent must meet to establish a basis for evaluating the child without the petitioner's consent (Application of a Child with a Handicapping Condition, Appeal No. 92-17; Application of a Child Suspected of Having a Disability, Appeal No. 93-7). The relevant inquiry is whether there is evidence that the child is unable to do school work at his present grade level, despite having received academic or behavioral remedial assistance (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-33).

The child's elementary school report cards and standardized test results revealed that he has made satisfactory academic progress, prior to his entry into the Peter Rouget Middle School. The child's total reading score at the fourth percentile on the standardized test which was administered in the Spring 1994 was substantially below the reading scores which he had received in prior years. There is no evidence that respondent has attempted to explain the gross difference between this and other scores on similar tests. The record contains no information to validate or impeach this test score (cf. Application of a Child Suspected of Having a Disability, Appeal No. 93-7). I must also note that respondent has not produced evidence of the child's scores on the Pupil Evaluation Program tests administered in the third and the fifth grades.

The child's academic performance during the first two quarters of the 1994-95 school year was significantly worse than that of prior school years. However, the teacher comments recorded on the child's report card do not suggest that the child was incapable of doing his school work, rather that he would not or could not apply himself to his work. A child's failure to perform as a result of his or her lack of motivation in school does not afford a basis to suspect that the child has an educational disability (Application of a Child Suspected of Having a Handicapping Condition, 29 Ed. Dept. Rep. 432; Application of a Child Suspected of Having a Handicapping Condition, 30 id. 140; Application of a Child Having a Handicapping Condition, Appeal No. 91-33). In essence, I find that respondent has failed to adduce evidence that the child has had extensive academic difficulty over an extended period of time, or that he has been provided with significant remedial assistance (cf. Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 90-2; Application of a Child Suspected of Having a Disability, Appeal No. 94-25). I recognize that the child's behavior is disruptive, at the expense of both his own academic progress and that of his classmates. Nonetheless, such behavior is not prima facie evidence of a learning disability. Accordingly, I find that the hearing officer's decision must be set aside. Having so ruled, I can only express the hope that petitioner will make a concerted effort to work together with respondent's staff in addressing the boy's behavior. That behavior not only detracts from the learning environment, but threatens the boy's future in the adult world. 

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the decision of the hearing officer is annulled.