I have filed a petition with the New York State Review Office, to appeal the decision in my son's special education impartial hearing (using 2016 rules). The process allows for the school district to file an "Answer" within ten days of the petition having been served on the district. I am permitted to file a "Reply" within three days of the Answer having been served on me. The rules say:

"The petitioner may reply to the Answer of the respondent only with respect to any procedural defenses asserted in the Answer or with respect to any additional documentary evidence filed with the Answer."

I need some help understanding what I'm allowed to do in my Reply and what I'm not allowed to do. "Procedural defenses" sounds like specialized lingo and that is the part I don't understand. Here are some specific examples of things I'm not sure whether I can include in my Reply (some aspects of these might sound silly -- but the district feels that the child's special education eligibility hinges on these things; therefore they have become important):

  1. The district asked two of the child's teachers to fill out a special questionnaire about behavior. Teacher A's questionnaire showed frequent disruptive behavior; Teacher B's showed none. The district lawyer made a big thing out of this in the Answer. I have emails from this past fall (after the hearing sessions were complete, but before the decision was rendered) written by Teacher B about multiple incidents of disruptive behavior. I would like to include this type of additional evidence in the Reply.

  2. There are factual inaccuracies and distortions in the Answer. I would like to address these in the Reply.

  3. The district lawyer claimed, in the Reply, that the student's grades declined because he was involved in too many extracurricular activities. She gave as examples the music ensembles that he plays in as part of his coursework, and a college prep program for students of color called STEP, which is a program financed and administered by the state education departement. I printed a description of the STEP program from its website, and an email from the STEP program directed to parents of students in the program, showing that the primary activity students are offered when they get accepted into the STEP program is free weekly tutoring. I would like to include these materials as additional evidence in my Reply, to rebut the Answer.

  4. The Answer takes a number of statements in the transcript and the exhibits out of context, and then draws erroneous conclusions. I would like to point out the specific things in the record that show that the conclusions are erroneous.

  5. The Answer asserts "facts" that are not in evidence, and that aren't true. For one of these things, the review officer could in principle ask the district to disclose certain student records to get to the bottom of the matter. I would like to point this out in the Reply.

There was no new evidence introduced with the Answer, just lots of distortions of the existing evidence.

I'm not asking for legal advice, just for help understanding the phrase. I included examples in my question just to help people see where I'm confused. You don't even have to focus your answer on the specific examples if you'd rather not.

Also note, my petition has already been accepted for review. The worst that can happen if I include something that's not kosher in my Reply is that it will be disregarded. However, even if that happened, the review officer will still go carefully through my petition and the hearing record.

1 Answer 1


Typically an Answer would have two parts. The first part presents the Defendant's side of the story raised in the Petition in an effort to assert that the Petition when viewed in light of the actual facts hasn't demonstrated a right to relief.

The second part sets forth "affirmative defenses", most of which are procedural in nature. An affirmative defense raises some set of circumstances not discussed in the Petition that make it appropriate to deny relief even when, but for the defense, if everything in the Petition was true, this would suffice to establish grounds for relief.

For example, procedural defenses might include: failure to meet a deadline, failure to give notice to the proper persons, failure to pay a filing fee, failure to include required information (such as a case number or a statement of facts or a signature) in the Petition, or lack of standing to file the Petition on behalf of the child because parental rights or legal guardianship are absent or because the person filing the Petition isn't an adult.

The notion is that the Reply, in theory, should limit itself to responding to the newly raised procedural defenses stated in the Answer, or to new documents provided with the Answer, instead of trying to argue and resolve every dispute of fact or credibility issues between the Petition's version of the facts and the Answer's version of the facts.

When in doubt, talk about it in the Reply. At worst, it is beyond the scope of what should be included in a Reply and can be ignored by the hearing officer as harmless. And, sometimes the hearing officer will decide that they want to know what is said even if it isn't strictly within the proper scope of a Reply. Certainly provide any documents that weren't previously provided that rebut the claims in the Answer.

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