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Decision No. 13,264

Appeal of MARGARET LEDERHAAS, on behalf of her son, ANTHONY, from action of the Board of Education of the Port Jervis City School District relating to student discipline.

Decision No. 13,264

(September 23, 1994)

Cuddeback, Onofry & Schadt, Esqs., attorneys for respondent, Robert A. Onofry, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's denial of her request for a superintendent's hearing to review certain disciplinary actions imposed on her son by his gym teacher. The appeal is dismissed.

According to petitioner, her son has been diagnosed with tourette's syndrome, asthma, borderline hypoglycemia, attention deficit disorder and short-term memory problems. Although petitioner's son was in a regular fifth grade class at the time of this appeal, petitioner claims that her son's teachers and the school principal agreed to make certain accommodations and modifications to his school program and agreed not to penalize him for behavior related to his disability. At the same time, petitioner was also involved in an impartial hearing challenging the refusal of respondent's committee on special education ("CSE") to classify her son as a child with a disability.

Petitioner claims that despite the agreement to accommodate her son, his gym teacher directed him one day to sit on the sidelines in gym class because he was humming and had put his arm around another child. According to petitioner, the child was then instructed to rejoin the class on the playground where the children were instructed to sit on the grass. Petitioner's son refused and, once again, according to petitioner, the gym teacher directed him to sit apart from his classmates. Petitioner asserts that her son's behavior and refusal to sit on the grass, were due to compulsive behavior related to his disability. Thereafter, petitioner requested a superintendent's hearing to review the incidents in the gym, arguing that her son was not protected by law because he is not classified as a child with a disability under Article 89 of the Education Law. Instead of granting petitioner's request, respondent's assistant superintendent offered to meet with petitioner, the principal and the gym teacher. According to petitioner, the problem was not resolved at the meeting to her satisfaction. In fact, she claims that soon thereafter the gym teacher improperly removed her son from class again.

Although the seriousness of petitioner's allegations cannot be minimized, the hearing which she seeks is not required by law. Education Law '3214 mandates a superintendent's hearing prior to any student suspension of more than five days. Because petitioner's complaint does not involve a school suspension, there is no legal basis for ordering the specific relief petitioner seeks.

To the extent petitioner claims that her son is being penalized for behavior related to his disability, she correctly argues that punishment should not ordinarily be imposed to address behavior that is well beyond a student's control. In such cases, the proper response would be to modify a program and offer the appropriate accommodations to ensure that the student is not denied access to an education solely on the basis of his disability.

Even if this child has not been classified as a child with a disability under Article 89 of the Education Law, I note that as a child with tourette's syndrome, he would be protected under '504 of the Rehabilitation Act (29 USC 794), which entitles him to an assessment by a multidisciplinary team to recommend those accommodations and modifications necessary to meet the "educational needs of the child as adequately as the needs of nondisabled children are met" (34 CFR 104.33[b] and 104.35). In the event this student has not been classified as a child with a disability under Article 89, a multidisciplinary team (or the committee on special education) must convene to assess the child's needs to assure that he receives a free appropriate public education as required under '504. If petitioner continues to be dissatisfied with the recommendation, she has the right to request an impartial hearing under '504 to address her complaints.

THE APPEAL IS DISMISSED.

END OF FILE