95-084

       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 dismissed.

        Petitioner's son, who is fifteen years old, is presently enrolled in respondent's Elmont Memorial Junior-Senior High School. Petitioner is the child's natural mother. She and the child's father are divorced. The boy resides with his father and stepmother in respondent's district, while petitioner resides in New York City. Petitioner and her former husband have joint custody of the child. The child's father has reportedly indicated to respondent's staff that he would not consent to have the child evaluated by respondent's CSE, unless petitioner also consented to having the CSE do its evaluation. The child's father did not participate in the hearing in this proceeding, although he was notified by respondent that it had initiated a hearing. He is not a party to this appeal, although he was notified of its pendency.

        Federal and State regulations require that a board of education obtain parental consent for the initial evaluation of a student suspected of having a disability (34 CFR 300.504 [b][1]; 8 NYCRR 200.5 [b][1]). In the event that the student's parents do not consent to a proposed evaluation, a board of education is required to initiate a hearing to determine whether an evaluation should be conducted without parental consent (8 NYCRR 200.5 [b][3]). The board of education bears the burden of establishing that there is an adequate basis to suspect that the child may have an educational disability (Application of a Child Suspected of Having a Disability, Appeal No. 94-1; Application of a Child Suspected of Having a Disability, Appeal No. 94-3; Application of a Child Suspected of Having a Disability, Appeal No. 94-10; Application of a Child Suspected of Having a Disability, Appeal No. 94-38). In meeting its burden of proof, the board of education need not demonstrate that the child has a disability, but that there is an adequate basis to suspect the existence of a disability which impairs the child's educational performance (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-29; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-17). The board of education must also demonstrate what, if any, attempts have been made to remediate the child's performance (Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 91-33; Application of a Child Suspected of Having a Handicapping Condition, Appeal No. 92-17; Application of a Child Suspected of Having a Disability, Appeal No. 94-1).

        Respondent provides instruction in grades seven through twelve for the children who reside in respondent's four component school districts. Those school districts provide instruction from kindergarten through the sixth grade. There is no information in the record of this proceeding about this child's elementary school education, which was apparently provided in the Elmont Union Free School District. The record does include a stipulation between petitioner and the Elmont Union Free School District relating to the removal of certain information from the child's school records in that school district. At the hearing in this proceeding, petitioner claimed that the stipulation precluded the introduction into evidence of any information from the child's educational records in the Elmont district. The hearing officer acceded to petitioner's claim, over respondent's objection.

        The child reportedly completed the sixth grade in the Elmont Union Free School District, in June, 1992. While he could have entered the seventh grade in respondent's schools in September, 1992, the boy was reportedly enrolled in the seventh grade of a parochial school. During the 1993-94 school year, petitioner's son attended a public school in New York City, for the eighth grade. The record does not include transcripts, or other evidence of his academic performance, while in the seventh and eighth grades.

        In mid-September, 1994, petitioner's child entered the ninth grade in the Elmont Memorial High School. His guidance counselor testified at the hearing in this proceeding that the child's reading and mathematic scores were in the average range when the child registered for classes. He was enrolled in "Regents level" courses for English, Global Studies (social studies), mathematics, science, and Spanish. He was reassigned from a high school level Spanish class to a junior high school level Spanish class, upon the recommendation of the high school Spanish teacher. The child reportedly received first quarter grades of 65 in English, 50 in Global Studies, 60 in mathematics, 65 in science, and 65 in Spanish. His second quarter grades were reportedly 60 in English, 50 in Global Studies, 60 in mathematics, 60 in science, and 60 in Spanish. At the hearing in this proceeding, a teacher who served as an acting dean at the Elmont Memorial High School during the 1994-95 school year testified that the child had been referred by school staff to the acting dean for various alleged disciplinary infractions. After an incident with a female student on December 2, 1994, the child received a two-day in-school suspension. Approximately two weeks later, he received a second two-day in-school suspension for allegedly fighting with another student.

        In January, 1995, the ninth grade students in respondent's high school were required to take the Otis-Lennon School Ability Test. Petitioner's son received a standard score of 96, which is reportedly indicative of cognitive skills in the average range. The child also took standardized achievements in reading and mathematics. However, his test results were reportedly lost. The ninth grade students also took the Regents Preliminary Competency Tests in reading and writing (see 8 NYCRR 100.4 [d][1] and [2]). The child reportedly scored above the statewide reference point in reading, but below that measure in writing. In accordance with the State regulatory requirement (8 NYCRR 100.4 [f]), the child was assigned to a remedial writing course. However, he reportedly refused to participate in the course. The child received a one-day in-school suspension because he was reportedly disruptive in his Spanish class on January 31, 1995.

        In February, 1995, the child was referred to the building-level child study team because of his teachers' concerns about his academic and behavioral difficulties. On March 9, 1995, the child study team referred the child to respondent's CSE, because the child was reportedly failing each of his courses, except physical education. In its referral, the child study team indicated that the boy's teachers were concerned about his ability to handle the work, and that he had been suggested for respondent's "Operation Success" program, and had been placed in a remedial writing course at the end of the first semester. the Operation Success program is a daily before school assisted study hall, in which students can received assistance from teachers in each subject area.

        On March 16, 1995, respondent sent a notice of the child's referral to the CSE to the child's father, and sought his consent to having the child evaluated. When no response was received, a second request for consent was sent to the father on April 13, 1995. Respondent did not receive a response from the child's father to the second request for consent to evaluate the child. Although respondent did not initially seek petitioner's consent for an evaluation, petitioner indicated in a letter dated July 3, 1995 that she would not give her consent for an evaluation.

        For the third quarter of the 1994-95 school year, the child received the grades of 60 in English, 50 in Global Studies, 65 in mathematics, 60 in science, and 50 in Spanish. The record does not reveal the child's fourth quarter grade in Spanish. His other fourth quarter grades were 65 in English, 50 in Global Studies, 60 in mathematics, and 65 in science. The child was not eligible to take the Regents examination in science because he had not satisfactorily completed the requisite number of laboratory exercises (see 8 NYCRR 8.2 [c]). He received a grade of 21 on the Regents examination in mathematics. The child's final grades were 65 in English, 50 in Global Studies, 60 in science, and 55 in Spanish. The record does not reveal his final grade in mathematics.

        Petitioner challenged the accuracy of her child's grades. On July 14, 1995, she met with the high school principal to review the boy's grades. In a letter to petitioner, of the same date, the principal concluded that the boy's grades were substantiated by the data in his teacher's grade books. Petitioner has reportedly challenged respondent's alleged refusal to change the child's grades, by instituting an appeal to the Commissioner of Education pursuant to Section 310 of the Education Law. Her appeal is reportedly still pending. The child received two in-school suspensions in May, 1995, once for reportedly cutting his remedial writing course, and once for reportedly being disruptive in his Global Studies class.

        The hearing in this proceeding commenced on September 22, 1995, and concluded on October 25, 1995. The child's English, mathematics, Global Studies, science and Spanish teachers testified about the child's performance in their respective courses, and the acting dean, and a former assistant principal testified about the child's behavior in school. The principal, the boy's guidance counselor, and the guidance department chairperson also testified at the hearing. The hearing officer denied petitioner's request for subpoenas for the testimony of respondent's Director of Pupil Personnel Services and its Assistant Superintendent for Personnel and Administration.

        In his decision, which was dated November 25, 1995, the hearing officer found that the child exhibited extensive academic difficulties and pervasive social malfunctions, which together inhibited his ability to function within the school environment. The hearing officer held that respondent had met is burden of proof of establishing an adequate basis to suspect that the child might have an educational disability, and he authorized the CSE to conduct its evaluation.

        There is one procedural matter to be addressed before reaching the merits of petitioner's appeal. Petitioner has asked for oral argument in this appeal. However, State regulation does not permit oral argument (8 NYCRR 279.8). She has been afforded an opportunity to submit written argument (8 NYCRR 279.4; 34 CFR 300.510 [b][4]).

        Petitioner contends that the hearing officer did not conduct the hearing in an impartial manner. While acknowledging that the hearing officer did grant her request to have the high school principal testify, over respondent's objection, she asserts that the hearing officer hindered her examination of the principal during the hearing. She further asserts that the hearing officer hindered her examination of the former assistant principal and the child's Global Studies teacher. The record reveals that petitioner questioned the principal about an incident in which a teacher reportedly made an inappropriate remark to petitioner's son, and the investigation of that incident by the former assistant principal. She also questioned the principal about the child's disciplinary suspensions during the 1994-95 school year, and the conversations which she and the principal had during that school year. Petitioner further questioned the principal about the July 14, 1995 meeting at which petitioner and the principal reviewed the child's grades. During petitioner's examination of the witness, the hearing officer questioned the relevance of some of petitioner's questions, and cautioned her about the manner in which petitioner addressed her questions to the principal. The hearing officer finally terminated petitioner's examination of the witness on the ground that petitioner's questions were not eliciting useful information within the knowledge of the witness.

        The former assistant principal, who was subpoenaed at petitioner's request, testified about her investigation of the inappropriate remark by a teacher who was substituting for one of the child's teachers. The hearing officer would not allow petitioner to question the witness about alleged racism in another school district. Petitioner extensively questioned the child's Global Studies teacher about the latter's grading methods, and accused the teacher of publicly humiliating her child in class every day. The hearing officer warned petitioner to refrain from making statements about an alleged conspiracy against her son, while questioning the witness. Petitioner then indicated that she had no more questions of the witness.

        A hearing officer must afford each party to a hearing a reasonable opportunity to present documentary and testimonial evidence. When a parent is not represented by counsel, a hearing officer must ensure that the parent has the opportunity to present his or her case fully (Application of a Child with a Disability, Appeal No. 93-49). I have carefully reviewed the hearing transcript. I find that the hearing officer discharged his obligation, by ensuring that witnesses with first-hand knowledge of the relevant facts were heard, and by allowing petitioner considerable latitude in questioning the witnesses. He also discharged his obligation to preclude redundant or irrelevant testimony (Application of Child with a Disability, Appeal No. 92-32). The hearing officer acted well within his discretion when he cautioned petitioner about her inappropriate remarks to the witnesses. Upon the record before me, I find that petitioner's claim about the alleged partiality of the hearing officer is without merit.

        Petitioner also contends that there are errors in 14 pages of the transcript relating to her examination of the former assistant principal, and that respondent has failed to provide her with copies of the exhibits introduced into evidence at the hearing. Respondent denies petitioner's contentions, and affirmatively alleges that it has provided petitioner with copies of the transcript and exhibits. Petitioner offers only one example of an alleged error in the transcript. Even if I were to find that the one example given by petitioner was accurate, I would nevertheless find that the single error would not afford a basis for setting aside the hearing officer's decision.

        On the merits, petitioner argues that the child's grades as reported at the hearing were not truly reflective of the child's academic performance. She asserts that the child's reported performance on standardized tests has not been substantiated because respondent failed to produce copies of the child's test papers, notwithstanding her request for test copies. Respondent's witnesses testified that the child's test papers for the standardized reading and mathematics achievement tests which the child took in January, 1995 were lost. The child was reportedly to be retested in April, 1995. Petitioner's Exhibit D in evidence is the first page of a Wide Range Achievement Test which was administered to the child on April 12, 1995. Exhibit D indicates that the child obtained a raw score of 34, and a standard score of 87 in mathematics. There is no evidence that the child was retested in reading. With respect to the protocols for the Otis-Lennon and PCTs, respondent asserts that it has complied to the extent that it is legally permitted to disclose that information. Given the nature of those tests, I am satisfied with respondent's explanation.

        Petitioner contends in this appeal, as she did at the hearing, that the child's teachers did not give him full credit for his academic achievement, because of an alleged conspiracy by respondent's staff against the child. While I note that the petitioner has chosen to also challenge the child's grades in her appeal to the Commissioner of Education, I find that the record which is before me does not afford any basis for disbelieving the testimony of the child's teachers about the manner in which they graded the boy's academic performance, or the validity of the grades which he received. For example, the child's Regents mathematics exam was graded by three teachers, two of whom were not the child's own teacher.

        The grades which the child received in his ninth grade courses appear to be well below what a child of his reported cognitive ability should be able to achieve. At the hearing, the child's English teacher testified about the disparity between the child's well developed oral skills and his limited writing skills. The disparity which those teachers described is consistent with the child's reported performance on the reading and writing PCTs. The child's Spanish teacher also testified about the disparity between the child's oral and writing skills. The child's science teacher testified about a different kind of disparity in the child's performance. He testified that the child's performance on brief quizzes was significantly better than this performance on longer written tests which included more material. The child's Global Studies teacher testified that the child had deficits in his organizational skills. I have also considered respondent's attempts to provide remedial assistance to the child, including the science teacher's offer to work with the child on his laboratory exercises during the teacher's lunch period, and the offers of help which were made by the child's Spanish and mathematics teachers. The child was also encouraged to attend respondent's Operation Success program. At the hearing, the boy acknowledged that he didn't go to the program, and asserted that he did not require any extra help.

        Upon the record before me, I find that respondent has met its burden of proving that there is an adequate basis to suspect that the child may have an educational disability. The record before me reveals that petitioner does not believe that any evaluation which the CSE performed would be valid. At the close of the hearing, respondent's attorney offered to have the evaluation done independently. I urge the parties to proceed with an independent evaluation of the child, while I note that respondent has the legal right to obtain its own evaluation.

THE APPEAL IS DISMISSED