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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 Syracuse


Hancock Estabrook, L.L.P., attorneys for respondent, Renee L. James, Esq., of counsel


       Petitioner appeals from an impartial hearing officer's decision which rejected petitioner's assertion that his son should be identified a gifted as well as learning disabled on the boy's individualized education program (IEP) for the 1998-99 school year. He also challenges her determination that respondent was providing an appropriate educational placement to the boy in a resource room program at its Shea Middle School during the 1998-99 school year. He seeks an order compelling respondent to indicate that his son is gifted on the IEP, and to transfer his son to its Roberts Middle School because the academic achievement of the students in that school's resource room program would reportedly be more similar to that of his son. The appeal must be dismissed.

        At the outset, I note that petitioner also seeks an order requiring respondent to provide the parents of all children with disabilities with copies of their children's proposed individualized education program (IEP) annual goals in advance of the parents' meetings with respondent's committee on special education (CSE), as well as a copy of the CSE meeting minutes to the parents after its meeting with them. While I will consider what the CSE did or did not do with respect to the development of this child's IEP, I must point out that general complaints about a board of education's practices or policies should be addressed to the State Education Department's Office of Vocational and Educational Services for Individuals with Disabilities (Application of the Board of Education of the Clarkstown Central School District, Appeal No. 99-11).

        Petitioner's son is 13 years old. During the 1998-99 school year, he was enrolled in the sixth grade at respondent's Shea Middle School. He entered kindergarten in respondent's Danforth Elementary School. The child was then enrolled in respondent's Bellevue Elementary School for the first through the fifth grades. While in the second grade during the 1994-95 school year, petitioner's son was referred for an evaluation by his teacher, who was concerned about the child's progress in reading. He was found to have above average cognitive skills, but below average reading and math skills. He had a significant weakness in his short-term auditory memory skills, and a relative weakness in his short-term visual memory skills. The child was also described as having an extreme reaction to stress and frustration. The school psychologist suggested that the boy should be considered for referral to respondent's Center for Inquiry, which was respondent's program for gifted students, because the boy had excellent abstract verbal skills (Exhibit P-1).

        The CSE recommended that the child be classified as learning disabled, and that he receive one hour of resource room services per day while in the third grade during the 1995-96 school year to address his weaknesses in reading and math (Exhibit P-4). His IEP for that year included a notation that he would be seen by a pediatrician to determine whether he had an attention deficit hyperactivity disorder (ADHD). Although a physician reportedly suggested that medication be tried to ascertain whether the child had ADHD (Exhibit D-1), there is no evidence in the record of a formal diagnosis of an attention deficit disorder, or ADHD. The boy was also enrolled in respondent's Center for Inquiry during the 1995-96 school year. The child was not described as gifted, nor was the Center for Inquiry mentioned on his IEP for the 1995-96 school year (Exhibit P-4). His third grade report card (Attachment 10-b to the petition) indicated that the boy made generally satisfactory academic progress, although he continued to lag behind in reading.

        The child reportedly continued to receive resource room services for one period per day, and to participate in the Center for Inquiry, while in the fourth and fifth grades at the Bellevue Elementary School. In the portion of the child's IEP for the 1996-97 school year which describes his intellectual functioning, there is a statement indicating that he was attending the gifted program, and had excellent abstract verbal skills (Exhibit P-3). Near the end of the fourth grade in May, 1997, the child's reading skills were reported to be at the third grade level, while his math skills were at the fourth grade level (Exhibit P-2). Nevertheless, his IEP for the fifth grade indicated that he was learning disabled in both reading and math. In any event, the IEP provided that he should have access to math tables, a calculator, and a tape recorder, and have the benefit of various testing modifications. The 1997-98 IEP also included the brief comment "attends Center for Inquiry" under its description of his intellectual functioning (Exhibit P-2).

        The CSE conducted its annual review of the child on June 17, 1998. It again recommended that the boy be classified as learning disabled in reading and math, and that he receive one period of resource room services per day while in the sixth grade (Exhibit D-4). The comment that the boy attended the Center for Inquiry appeared in the portion of the IEP describing his intellectual functioning. I note that the IEP also indicated that he had received a score of 13 out of a possible 16 on the fifth grade writing test. The IEP provided that he should have access to taped texts, math tables and a calculator, and have the benefit of various testing modifications. Petitioner accepted the IEP (Transcript, page 197).

        The child's triennial psychological evaluation was performed in July, 1998 by the same psychologist who had initially evaluated the boy in 1995. She administered the Comprehensive Test of Nonverbal Intelligence to him as a means of monitoring his visual reasoning ability, rather than reassessing his cognitive skills, which she described as being consistently in the high average to above average range. The school psychologist reported that the boy's visual short-term memory skills were in the above average range, but his auditory short-term memory skills were in the below average range. She indicated that the child had great difficulty discriminating sounds and reviewing their order within a syllable pattern, making it difficult for him to decode and encode (spell) words. Nevertheless, the school psychologist reported that petitioner's son had made significant academic progress since his last evaluation. On the Woodcock-Johnson Tests of Achievement – Revised (W-J-R), he achieved grade equivalent (and standard) scores of 4.2 (91) for letter-word identification, 4.6 (94) for passage comprehension, 4.7 (87) for math calculation, and 5.8 (99) for applied problems. His scores on the Wechsler Individual Achievement Test differed somewhat, but were generally comparable to his W-J-R scores. On the Test of Written Language – 3, the boy achieved standard scores of 93 for contrived writing, and 106 for spontaneous writing. The school psychologist also assessed the boy's social and emotional development, and reported that he had made great strides in his ability to cope with anxiety and frustration. She opined that the boy was developing a better self-concept as he experienced academic success, and that social/emotional issues did not present as concerns. She recommended that he receive resource room services to address his academic weaknesses (Exhibit D-1).

        In September, 1998, the boy began attending respondent's Shea Middle School, where he was enrolled in a regular education sixth grade class and received resource room services for one period per day. Respondent's Center for Inquiry program in which the child had previously participated was reportedly discontinued because of a lack of funding at the end of the 1997-98 school year (Exhibit D-5).

        On October 9, 1998, the CSE met to review the results of the boy's triennial evaluation and his IEP. His sixth grade regular education and resource room teacher attended the meeting. Petitioner asked the CSE to indicate on his son's IEP that the boy was gifted. However, the CSE did not agree to do as petitioner requested. The CSE did not change the boy's classification, or his educational program. In the portion of the IEP from that meeting describing the boy's level of intellectual functioning, the CSE indicated that he was "high average", as it had done on each of his prior IEPs (Exhibit D-3). The comment section for this item was left blank. However, the words "Identified as gifted child" were added to the IEP's description of the boy's social development. Petitioner testified at the hearing in this proceeding that he did not accept the boy's October 9 IEP because it did not indicate that his son was gifted, as well as learning disabled in reading and math (Transcript, page 196).

        The group which met on October 9, 1998 was apparently a CSE subcommittee. The district-level CSE met on November 2, 1998. It did not alter the subcommittee's recommendations with regard to the child's classification or educational program. At that meeting, petitioner reiterated his request that the boy's IEP indicate that he was gifted, or had participated in the Center for Inquiry. The CSE did not change the portion of the IEP which described the child's intellectual functioning. At the hearing, respondent's Director of Special Education, who had participated in the November 2 CSE meeting, testified that the CSE did not believe that it was appropriate to list a program that was not a special education service and was no longer in existence as part of the IEP's description of his intellectual functioning. However, the IEP prepared at the November 2 meeting continued to indicate that the boy had been identified as a gifted student in its description of his social development. The IEP also indicated that petitioner was concerned about cuts in the Center for Inquiry program which his son had previously attended (Exhibit D-2).

        Petitioner requested an impartial hearing to review his son's IEP. At the hearing, which began on February 2, 1999 and concluded on February 23, 1999, petitioner contended that giftedness was part and parcel of his son's learning disability, and that his son's IEP should indicate that fact. Petitioner also expressed concern about his son attending the Shea Middle School, alluding to an incident in which his son had reportedly been injured in his regular education class. However, the hearing officer upheld respondent's objection to pursuing that issue, and suggested that petitioner discuss his concerns with the building principal. She also would not allow petitioner to attempt to demonstrate that the Shea Middle School, which was the child's neighborhood middle school, was one of respondent's lowest performing middle schools. She did allow petitioner to question respondent's staff about the suitability of grouping for instructional purposes of the children in his son's resource room at the Shea Middle School. Petitioner also raised the issue of whether the CSE had afforded him an opportunity to participate in the development of his son's IEP annual goals and short-term objectives for the 1998-99 school year.

        In her decision which was rendered on April 25, 1999, the hearing officer found that petitioner had been afforded an opportunity to participate in the development of his son's IEP for the 1998-99 school year, but had not questioned his IEP goals and objectives at any of the three CSE meetings in the spring and fall of 1998. She also found that the child's IEP accurately reflected the results of his evaluations, and correctly classified him as learning disabled. The hearing officer found that respondent's former program for gifted students was not a mandated program, and it did not need to be listed on the child's IEP. She also found that the child was appropriately grouped for instructional purposes in his resource room class at the Shea Middle School, and that his placement in that school was consistent with the Federal and State requirement for placement in the least restrictive placement (see 34 CFR 300.550 [b]; 8 NYCRR 200.6 [a][1]). In view of some confusion about the child's handwriting, the hearing officer recommended that the boy's handwriting be assessed to ascertain whether he required any special education assistance with it. She also recommended that the boy's parents consult with a school counselor or social worker about his alleged reluctance to attend school.

        Petitioner objects to the hearing officer's exclusion of certain documents from the record. Those documents included a list of respondent's lowest performing schools, a letter by the district's Director of Pupil Services denying a request by the boy's parents for a transfer to another school, and a copy of a physician's note relating to a wound which petitioner's son had received in school on October 20, 1998. Petitioner also refers to a ruling the hearing officer made on the first day of the hearing that other documents would not be used on that day. Although the documents were not identified in the record, petitioner asserts that they included his son's report cards from 1995 forward. At the beginning of the second day of the hearing, the hearing officer did not allow into evidence a copy of an impartial hearing officer's decision in New York City involving the removal of a child with a disability from a program for gifted students.

        Each party to an impartial hearing has the right to present evidence and to question all witnesses (34 CFR 300.508 [a][2]; 8 NYCRR 200.5 [c][9]). However, a hearing officer may limit irrelevant and unduly repetitious evidence and testing (Application of a Child with a Handicapping Condition, Appeal No. 92-18; Application of a Child with a Disability, Appeal No. 96-71). I find that the first three documents to which petitioner refers were properly excluded by the hearing officer as not relevant to the issues which she was called upon to determine. Although I find that the boy's prior report cards were appropriate for inclusion in the record to provide some background about his academic performance, I note that the results of his triennial evaluation are in the record. The New York City hearing officer's decision which was excluded was not evidence. It would have appropriately been brought to the hearing officer's attention in a memorandum of law by petitioner's attorney.

        Petitioner challenges the hearing officer's finding that he was afforded an opportunity to participate in the development of his son's IEP and had not requested a discussion of his son's annual goals and objectives. He asserts that he was never afforded an opportunity to discuss in a meaningful way the goals and objectives to address his son's disabilities in reading and math, as well as his gifted abilities in art, oral language and creative writing. Petitioner testified that he was given a copy of his son's proposed goals and objectives at the June 17, 1998 annual review (see Application of a Child with a Handicapping Condition, Appeal No. 90-13). He further testified that the goals and objectives were discussed "in general, not specifically" (Transcript, page 202). At the June 17, 1998 meeting, petitioner, who is a special education teacher, did not object to not having a chance to review his son's IEP goals (Transcript, page 205). He admitted that at the next meeting on October 9, 1998, he also did not object to his son's IEP goals or to his placement in a regular education program with resource room services (Transcript, page 208). Petitioner's only objection to the IEP was the absence of a designation as gifted in the IEP's description of his son's intellectual functioning (Ibid.). Petitioner admitted that he had not objected to his son's IEP goals and objectives at the November 2, 1998 meeting. I find that petitioner's contention about the lack of an opportunity to discuss his son's IEP goals and objectives is without merit.

        The central issue in this appeal is whether the hearing officer correctly determined that the CSE was not required to include the word "gifted" in the boy's IEP description of his intellectual functioning. Petitioner notes that the minutes of the June 17, 1998 CSE meeting described his son as gifted (Exhibit P-5), and that the IEP which was prepared at that meeting, while not using that term, did indicate that he was attending the Center for Inquiry (Exhibit D-4). He contends that his son should be classified as learning disabled in reading and math, and gifted. However, I must point out that giftedness is not a handicapping condition under the IDEA (Roane County School System v. Ned A., 3-93-CV-744, U.S. D.C. E.D. Tenn., 1995 [22 IDELR 574]), nor is it under New York State's definition of a child with a disability (see Section 4401 [1] of the Education Law; 8 NYCRR 200.1 [mm]). Although New York State encourages school districts to provide programs tailored to meet the needs of their gifted students (see Article 90 of the Education Law; 8 NYCRR 142), it does not require them to do so (Bennett v. City School District of the City of New Rochelle, 114 A.D. 2d 58 [2d Dept., 1985]). Since "gifted" is not a classification under either the IDEA or Article 89 of the Education Law, I find that petitioner has no legal right to require the CSE to classify his son as learning disabled and gifted (Application of a Child with a Handicapping Condition, Appeal No. 92-8).

        The Regulations of the Commissioner of Education require that each child's IEP describe the child's present levels of performance and individual needs in the areas of academic achievement and learning characteristics, social development, physical development, and management needs (8 NYCRR 200.4 [a][2][i]). A description of a child's cognitive skills would typically appear in the portion of the IEP which describes the child's academic achievement and learning characteristics. In this instance, the boy's IEP indicated that he is of high average intelligence, which is consistent with the school psychologist's description of the boy during her testimony. Although the IEP might well have mentioned the fact that one of the boy's strengths is his ability to reason abstractly, it does not follow that he should have been described as gifted. I must note that "gifted" does not in itself provide much useful information, since a child may be gifted in any one of a number of things. The State regulation which defines the term "gifted pupils" for purposes of the State's gifted and talented program indicates that it can refer to intellectual ability, special academic aptitude, and ability in visual and performing arts (8 NYCRR 142.2). The question which I must decide is whether the boy's IEP accurately describes the results of the boy's evaluations, and provides sufficient information to determine his special education needs. I find that the boy's November 2, 1998 IEP does so.

        Petitioner also asks that I direct respondent to place his son in its Roberts Middle School because such a placement would reportedly place him "in an environment of like learners", and permit him to be enrolled in a resource room program where the range of academic achievement among the students would be similar. He asserts that he applied to respondent to transfer his son, but his application was rejected. Respondent opposes petitioner's request. It contends that placing the boy in the Roberts Middle School would not be consistent with the least restrictive environment requirement. Petitioner's son was in a regular education class for all but one period per day during the 1998-99 school year. There is no evidence in the record about the other children in the boy's regular education sixth grade class, nor should there have been such evidence. The requirement that children with disabilities be grouped with children of similar abilities and needs for instruction applies only to pupils who are placed together for purposes of special education (8 NYCRR 200.6 [a][3]). Therefore, I find that the hearing officer properly excluded evidence about the Shea Middle School's standing in relation to respondent's other schools with regard to student performance. The hearing officer did review a "profile" of the students in his resource room. I have also considered that profile (Exhibit D-6). Although petitioner's son had a higher verbal IQ score than any of his classmates in the resource room, his performance and full scale IQ scores were consistent with those of his classmates. There were three other children in the resource room. They had achieved standard scores of 66, 74, and 76 for reading while petitioner's son had achieved a standard score of 81. The boy's standard score of 84 for math was consistent with those of the others, which ranged from 80 to 113. The boy's resource room teacher was also questioned about the similarity of her student's needs and abilities at the hearing. Having reviewed her testimony and the profile, I find that petitioner's son was appropriately grouped for instructional purposes in his resource room class at the Shea Middle School. Therefore, petitioner's request for a transfer is beyond the scope of this proceeding.

        I have also considered petitioner's other arguments and requests, which I find to be without merit.


Topical Index

CSE ProcessParent Participation
Educational PlacementResource Room
IDEA EligibilityDisability Category/Classification
Parent Appeal
Preliminary MattersAdditional Evidence/Record Issues
Preliminary MattersConduct of Impartial Hearing