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Friday, August 15, 2008

Important case to counter district motions to dismiss hearing requests

Somoza v. NYC,__F.3d__(2nd Cir. 2008):

Parent sought compensatory services for her 23 year old alleging a denial of FAPE for the entire time she had been in the NYC school system. NYC had “voluntarily” agreed to an extra year of private schooling in exchange for a release of all claims. That year was due to expire in June of 2006. The parent argued that the claim should have survived because there was no relief available that was not already being provided(because the child was at the private school at district expense). The District Court agreed reasoning that claim did not accrue until after the year in the private school. The Second Circuit reversed holding that the claim accrued during the 02-03 school and that, therefore, the claim was barred under any of the various possible statutes of limitation.

Most importantly for ongoing purposes, the Second Circuit stated that 
the fact the DOE voluntarily provided the requested educational services beyond the term of plaintiff's statutory entitlement does not “deprive a federal court [or administrative agency] of its power to determine” the nature of the entitlement at issue. Friends of the Earth Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 189 (2000); see also New York Pub. Int. Res. Group, Inc. v. Johnson, 427 F.3d 172, 185 (2d Cir.2005). Plaintiff's allegations that, in the past, the DOE had denied her the FAPE to which she was entitled presented a live and “concrete dispute affecting cognizable current concerns of the parties” at the time that plaintiff arrived at this understanding. Ehrenfeld v. Mahfouz, 489 F.3d 542, 546 (2d Cir.2007) (internal quotation marks omitted).
As previously noted in this blog, in a number of cases, districts have been successful in convincing hearing officers to dismiss hearing requests based upon their representations of willingness to do what the parents are requesting. The cases were dismissed despite that there was no settlement agreement, no consent decree and no order of the IHO compelling the relief.  Not surprisingly, SRO Paul Kelly affirmed each of these decisions(SRO 07-122, 08-008, 06-109). I have appealed SRO 07-122 and 08-008 to federal court, but we are at the very early stages of the litigation. The Somoza case is very strong authority in favor of our position that the parents were wrongfully deprived of due process and that the IHO had the “power to determine the nature of the entitlement at issue”.

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