Decision No. 12,687

(April 17, 1992)

SOBOL, Commissioner.--Petitioner appeals from the decision of respondent's superintendent to suspend her son from school for the remainder of the year. The appeal must be dismissed.

Petitioner's fourteen year old son has a long history of emotional problems for which he received treatment, including hospitalization in 1990. The record indicates that although his attendance, behavior and academic performance have been problematic, respondent's committee on special education (CSE) determined in 1990 and again in 1991 that he should not be classified as a pupil with a handicapping condition. On November 25, 1991, petitioner's son was suspended for the remainder of the school year from a BOCES based alternative school program for using a "BB gun" on school grounds and endangering the safety of another student. Respondent's superintendent of schools conducted a hearing on that date pursuant to Education Law "3214(3) and found petitioner's son guilty of all charges. On December 12, 1991, petitioner referred her son to the CSE once again, and commenced this appeal on December 19, 1991.

Petitioner seeks an order annulling her son's suspension, declaring the penalty excessive and directing respondent to return her son to his full-time BOCES placement. She also seeks an order directing respondent's CSE to discontinue its policy of considering academic achievement only for children experiencing social, emotional and management problems and asks that the CSE conduct a psychoeducational evaluation to determine if her son should be classified by respondent's CSE. Petitioner also seeks a declaratory ruling under "504 of the Rehabilitation Act that her son is a qualified disabled person and therefore must be evaluated before a suspension that constitutes a change of placement may be imposed.

I note that subsequent to filing this appeal, respondent's CSE convened and classified petitioner's son as emotionally disturbed. The CSE recommended that the student be placed in the Dutchess County BOCES Day Treatment Program. As a result of the CSE determination, respondent acknowledges its obligation to place petitioner's son in the setting described in his individualized educational program (IEP), notwithstanding the prior suspension.

Respondent nevertheless asserts that the petition should be dismissed for failure to exhaust administrative remedies under Education Law "3214 because petitioner appealed the superintendent's decision directly to the Commissioner before obtaining review by the board of education. Respondent is correct that Education Law "3214(3)(c) requires petitioner to exhaust administrative remedies by appealing to the board of education before commencing an appeal to the Commissioner of Education (Matter of Ahern, 22 Ed Dept Rep 123; Matter of Berkman, 21 id. 590). Because petitioner never commenced such an appeal, the petition must be dismissed.

The petition must also be dismissed because petitioner failed to join BOCES as a necessary party. To the extent that petitioner request an order returning her son to his full-time BOCES placement, I note that BOCES would be a necessary party to adjudicating that claim.

Petitioner's request for a declaratory ruling on the policy of respondent's CSE, is not relief that is available in an appeal pursuant to Education Law "310 (Appeal of Heizman, 31 Ed Dept Rep , No. 12676, March 27, 1992; Application of a Child Suspected of Having a Handicapping Condition, 30 id. 316; Appeal of Richards, 25 id. 38).

Finally, respondent's subsequent classification of the student as a pupil with a handicapping condition renders moot petitioner's remaining claims. By classifying petitioner's son and recommending his placement in a day treatment program, respondent has, in essence, discontinued the student's suspension.

Accordingly, the appeal must also be dismissed on the merits. Petitioner's counsel reports, however, that as of March 3, 1992, the CSE placement had not been effectuated and that he remains out of school. Education Law "4402 and 8 NYCRR "200.5(a)(5) require that a school board implement a special education placement within thirty (30) days after its CSE's recommendation. Based on the date of its CSE meeting, respondent had until February 20, 1992 to offer petitioner's son an appropriate educational placement. Although the petition is dismissed, I remind respondent of its obligation to provide immediately petitioner's son with an appropriate educational placement.

Moreover, by classifying petitioner's son as a child with a handicapping condition, petitioner and her son are entitled to all the protections under Article 89 of the Education Law, including the procedural safeguards established pursuant to Education Law "4404 and 8 NYCRR "200.5. Thus, petitioner has the right to request an impartial hearing, and, if necessary, appeal to the State Review Officer, to challenge the recommendation of the CSE, as well as any failure by respondent board to implement a timely placement. Unless respondent has established a separate "504 hearing process, petitioner may also raise any claims pursuant to "504 before the impartial hearing officer (see, Appeal of a Child Suspected of Having a Handicapping Condition, 30 Ed Dept Rep 433, 438). During the pendency of such proceedings, and barring a court order to the contrary (see, Honig v. Doe, 484 US 305), the student has the right to continue in the educational program he attended prior to his suspension, unless otherwise agreed to by the parties (8 NYCRR "200.5[2][iii]). Because the supplemental correspondence submitted by petitioner suggest that there may be a dispute regarding the student's "current educational placement," I am referring this case to the Office of Special Education Services for review to assure that the student is able to return to his "current educational placement" pending any appeal.

THEAPPEAL IS DISMISSED.

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