Decision No. 18,503
Appeal of J.B. and A.B., on behalf of their child, from action of the Board of Education of the Jericho Union Free School District regarding educational placement.
Decision No. 18,503
(October 7, 2024)
Ingerman Smith, LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel
ROSA., Commissioner.--Petitioners appeal from action of the Board of Education of the Jericho Union Free School District (“respondent”) regarding integrated co-teaching (“ICT”) services for her child (“the student”).[1] The appeal must be dismissed.
The student was enrolled in respondent’s schools and assigned to an ICT classroom during fourth and fifth grade. On August 11, 2023, respondent’s section 504 committee convened to conduct an annual review and develop an accommodation plan (“504 plan”) for the student’s sixth-grade school year.[2] Following this meeting and additional communication with district representatives, respondent elected not to assign the student to an ICT classroom for the 2023-2024 school year. This appeal ensued. Petitioners’ request for interim relief was denied on November 9, 2023.
Petitioners request that the student attend an ICT classroom for the remainder of his time in respondent’s school district. They seek an order to that effect as well as other, related relief.
Respondent contends that the petition be dismissed for lack of jurisdiction and as untimely.
First, I must address a procedural matter. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14). A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
The appeal must be dismissed for lack of jurisdiction. Petitioner’s claims center on the allegation that respondent erred by refusing to recommend ICT services. Section 504 prohibits discrimination against individuals with disabilities who are “excluded from … participation in, … denied the benefits of, or … subjected to discrimination under any program or activity receiving Federal financial assistance,” which includes public schools (29 USC § 794 [a]). The Commissioner of Education has no authority to review Section 504 claims in an appeal under Education Law § 310 (Appeal of J.B., 62 Ed Dept Rep, Decision No. 18,245; Appeal of K.V., 61 id., Decision No. 18,067; Appeal of C.N. and C.N., 60 id., Decision No. 17,954). Since each of petitioner’s requests for relief are premised on a violation of Section 504, the appeal must be dismissed for lack of jurisdiction.[3]
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
[1] Integrated co-teaching services means the provision of specially designed instruction and academic instruction provided to a group of students with disabilities and general education students. School personnel assigned to each class must minimally include a special education and a general education teacher. A school district may include up to 12 students with disabilities in such a classroom unless it obtains a variance (8 NYCRR 200.6 [g])
[2] A “504 accommodation plan” refers to the program developed for a student under section 504 of the Rehabilitation Act of 1973 (29 USC § 794 [a]).
[3] To the extent petitioner challenges the student’s assignment to a general education class without ICT services as a general education student, this claim is untimely. An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). The record reflects that petitioner had actual knowledge of the student’s class assignment on August 18, 2023, more than 30 days prior to commencement of this appeal. While petitioner continued to email district officials and respondent, these constituted requests for reconsideration that did not toll the 30-day time limitation (Appeal of Cole, 57 Ed Dept Rep, Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).