Applications of a CHILD WITH A DISABILITY, by his parent, for review of two determinations of hearing officers relating to the provision of educational services by the Board of Education of the City School District of the City of New York
Hon. Michael A. Cardozo, Corporation Counsel, attorney for respondent, Joshua C. Chao and Thaddeus Hackworth, Esqs., of counsel
Petitioner appeals from two separate decisions of impartial hearing officers and seeks similar relief in both appeals. Since both appeals arise from essentially the same set of facts and involve similar underlying issues, they have been consolidated for purposes of this decision. The appeals must be dismissed.
At the time of the hearings in May and August 2004, petitioner's son was 15 years old, classified as a student with multiple disabilities, and attending a general education program at respondent's School of the Future. Petitioner's son is significantly hearing and vision impaired, as well as developmentally delayed. The student's classification is not in dispute. His prior educational history is discussed in more detail in Application of a Child with a Disability, Appeal No. 03-104; Application of a Child with a Disability, Appeal No. 03-073; and in Application of a Child with a Disability, Appeal No. 02-005, and will not be repeated here.
Hearing 1 commenced on May 13, 2004. At the hearing, petitioner requested an order declaring his son's then current general education placement at respondent's School of the Future to be the student's pendency placement during the resolution of petitioner's complaint filed in the United States District Court for the Southern District of New York (IHO Decision 1, p. 2).1 The impartial hearing officer in Hearing 1 issued a decision on June 18, 2004, in which he determined that the student's pendency placement at respondent's School of the Future was "valid until that time when SRO decision 03-104 becomes final" (IHO Decision 1, p. 7). The impartial hearing officer also determined that unless petitioner appealed the February 20, 2004 decision in Application of a Child with a Disability, Appeal No. 03-104, the student’s placement would change from the School of the Future to the special class placement ordered in that decision by the State Review Officer (id.).
For the 2004-05 school year, respondent's June 28, 2004 CSE again classified petitioner's son as a student with multiple disabilities and recommended that the student no longer attend the School of the Future, but attend a twelve-month 12:1+4 special education class in a specialized school with related services and a 1:1 crisis management paraprofessional (Hearing 2, Parent Ex. A at p. 1). Petitioner requested a due process hearing to contest this recommendation.
Hearing 2 commenced on August 9, 2004. At the second impartial hearing, petitioner requested an order to prevent respondent from changing his son's educational placement from the School of the Future during the pendency of various proceedings filed in the United States District Court for the Southern District of New York (IHO Decision 2, p. 2). The impartial hearing officer in Hearing 2 issued a decision on September 3, 2004, which noted that prior to August 9, 2004, petitioner and his son became residents of New Jersey, and determined, that as a result, petitioner’s request for declaratory relief finding the June 28th 2004 individualized education program (IEP) “invalid” was no longer properly before her (id.). The impartial hearing officer concluded that respondent was no longer responsible for implementing that IEP during the 2004-05 school year, and she disagreed with petitioner’s assertion that a declaration of the validity of the IEP would be relevant to the student’s special education program in New Jersey. She concluded that anything relevant to petitioner's son’s educational program in New Jersey would be better addressed by an impartial hearing officer in New Jersey (IHO Decision 2, p. 5).
On appeal from the Hearing 1 determination, petitioner seeks an order stopping respondent from changing his son's educational placement during the pendency of any federal court proceeding (Hearing 1, Pet. ¶ 26).
On appeal from the Hearing 2 determination, petitioner contends that his son's June 28th 2004 IEP (Hearing 2, Parent Ex. A) is defective (Hearing 2, Pet. ¶¶ 24-34) and requests that the June 28, 2004 IEP be declared “null and void” (Hearing 2, Pet. ¶ 35[b]).
Citing New York Education Law §§ 3202(1) and 4401(1) respondent contends, in both appeals, that neither petitioner nor his son are residents of New York State and, therefore, are not entitled to attend New York public schools. Respondent asserts that because petitioner and his son now reside in New Jersey, the issues involving educational programming in New York have become moot (Hearing 1, Ans. ¶ 28-29; Hearing 2, Ans. ¶ 37-38).
A State Review Officer is not required to determine issues which are no longer in controversy or to make a determination which would have no actual effect on the parties (Application of the Bd. of Educ., Appeal No. 02-070; Application of a Child with a Disability, Appeal No. 97-17; Application of a Child with a Disability, Appeal No. 94-9). The issues raised on appeal concern petitioner’s son’s programming and placement at the School of the Future. Petitioner has removed his son from that placement and now resides in New Jersey and has not demonstrated an intention to return for the 2004-05 school year. There is no determination that I can make that would have an actual effect on the parties. Subsequent events have laid the issues to rest. Petitioner enrolled his son in another school district in New Jersey (Hearing 2, Pet. ¶ 4) at the beginning of the 2004-05 school year, and consequently, respondent is no longer responsible for providing a free appropriate public education (FAPE) to the child (see Application of a Child with a Disability, Appeal No. 02-110; see also Application of a Child with a Disability, Appeal No. 02-109). Accordingly, petitioner's challenges to the determinations made by the hearing officers in Hearing 1 and Hearing 2 are dismissed.
THE APPEALS ARE DISMISSED.
1 I note that on June 16, 2004, petitioner filed a pro se complaint on behalf of his son in the United States District Court for the Southern District of New York (04-CV-04521) alleging that his son was aggrieved by Application of a Child with a Disability, Appeal No. 03-104 (Hearing 1, Ans. Ex. D). On November 18, 2004 Magistrate Judge Douglas F. Eaton’s Report and Recommendation recommended dismissal of the complaint involving Appeal No. 03-104 as moot, as well as recommending dismissal of petitioner’s two other complaints pending in federal court.