88 Misc. 2d 551 | N.Y. Sup. Ct. | 1976
In this article 78 proceeding the petitioner challenges the action of the respondents in connection with the educational opportunities they afford to her 19-year-old trainable mentally retarded son, a "handicapped child” as defined in the Education Law.
Petitioner and her family have resided within the Brockport Central School District since about 1969. The boy, since the approximate age of IIV2 years, has been placed in a trainable mentally retarded special class, which was located in schools in Greece and Hilton until the end of 1971-1972 school years, thereafter for three school years, from age 15 to 18, in the Bernabi Elementary School in Spencerport, New York and for the school year 1975-1976 in Brockport High School, where there are regular grade classes 9 through 12, with children of similar chronological ages. For the 1976-1977 school year the special class has been relocated at the Bernabi Elementary School, consisting of grades 4 through 6, the chronological ages of children ranging from approximately 9 through 12 years. The claim of petitioner basically is that this class relocation constitutes a change in educational placement, places the boy with students of different chronological ages and was made by the respondents without compliance with the procedural requirements demanded by section 200.10 of the regulations of the Commissioner of Education (8 NYCRR 200.10) adopted on March 30, 1976, effective May 1, 1976 and the provisions of chapter 853 of the Laws of 1976, effective July 1, 1976. (Education Law, art 89, § 4401 et seq.)
The second supervisory district of the respondent, Board of Co-operative Educational Services (BOCES), comprises the respondent Brockport Central School District and eight additional local school districts, who contract with BOCES for special services or programs for children with handicapping conditions. BOCES personnel teach the special class and schedule its location in available facilities within a local school district in its supervisory area.
Following the annual review of the space and facilities
Section 4402 of the Education Law directs the board of education of each school district to ascertain the number of handicapped children in such district and the nature of the handicapping condition of each child. Each board of education is directed to either establish or share the services of a committee on the handicapped, composed of specialized personnel, and charged with the responsibility of identifying, reviewing and evaluating at least annually the status of each handicapped child and making recommendations to the parent and school board "as to appropriate educational programs and placement”. The committee is required to provide written prior notice to the parents whenever a modification or change, among other things, of the "educational placement of the child” is planned and advise the parent of his opportunity to address the committee on the propriety of the recommendations on "program placement”. The board of education is required either to furnish suitable educational opportunities for handicapped children by one of the "special services or programs” listed in section 4401 of the Education Law or to contract therefore upon recommendation of the committee on the handicapped. "Special services or programs” as defined in the act include special classes, part-time programs, home instruction, special teachers, contracts with other districts, among other things. The commissioner’s regulations concerning "Handicapped Children” defines a "special class” as "a
Respondents further contend that the purpose of the foregoing law and regulations is to permit parent participation and, if necessary, informal and formal hearings regarding the initial placement of an individual child in a handicapped classification or a recommended subsequent change, not including the location of classes for handicapped students, claimed to be a matter within the discretion of BOCES after evaluation of available space, location, facilities and other relevant criteria. It further contends, without conceding that the relocation decision is subject to the procedural requirements, that the determination in any event predated the effective date of both the regulations and law, which are thus inapplicable.
The court holds that the "Procedural due process [etc]” requirements under the regulations and the "Appeal procedures for handicapped children” under section 4404 of the Education Law are not applicable to the facts and circumstances under review. The nature of the handicapping condition of petitioner’s son has been identified as "trainable mentally retarded” and he has been furnished educational opportunity by a special service or program consisting of a special class. The responsibility of the committee on the handicapped, among other things, is to identify, review and evaluate at least annually the status of each handicapped child, make
The law would be cumbersome, the duties of the committee onerous and the burdens on school district intolerable, if every decision relating to details of the educational program for handicapped children, other than the important underlying educational needs of the handicapped child as expressed in the statute, were subject to the consent of a parent, the scrutiny of a hearing officer and the appeals procedure provided by the new law. The discretion of school district personnel with special expertise would be unduly burdened. This goes beyond the purpose of the legislation in establishing a rational and
The law and regulations apply to the current school year and the contention by the respondents that it should not be applied retroactively, because the decisional process occurred prior to the effective date of both the regulations and the law, is without merit. Within the time frame involved, any change in the identity of the handicapped child or educational program is subject to the current law and applicable regulations. However, petitioner does not contend that the placement of the child or the special services or programs provided, other than the class location, is inappropriate and in this area the court finds that respondents have not failed to comply with the existing law and regulations.
The proceeding is dismissed.