Decision No. 13,450

(July 13, 1995)

Legal Services of Central New York, attorneys for petitioner, Paul F. Kelly, Esq., of counsel

O'Hara & O'Connell, P.C., attorneys for respondent

SHELDON, Acting Commissioner.--Petitioner appeals the decision of the Board of Education of the Liverpool Central School District ("respondent") to suspend her daughter. The appeal must be sustained in part.

On March 17, 1992, petitioner's daughter, then an eighth grade student in respondent's school district, was suspended for five days, pending a hearing pursuant to Education Law '3214, for striking another student, using inappropriate language, insubordinate and disruptive conduct in class, and throwing a snowball at a school bus. A formal hearing under '3214 was scheduled for March 25th but was adjourned to April 2nd at the request of petitioner's advocate representative. Respondent's superintendent agreed to this adjournment upon the understanding that the student would not be permitted to re-enter school until the disciplinary action was resolved. Respondent subsequently began providing homebound instruction to the student. On April 2nd, petitioner's attorney appeared and requested another adjournment of the hearing because of the unavailability of petitioner's advocate/representative. Respondent indicated that it would continue the student's homebound instruction pending a new hearing date.

In the meantime, on March 23rd petitioner filed a request that her daughter be evaluated by respondent's Committee on Special Education (CSE). On May 8th, the CSE recommended that the student be classified as "Other Health Impaired: Attention Deficit Hyperactivity Disorder" and placed in a specified program. However, on June 1st, respondent rejected the CSE's recommended classification and remanded the matter to the CSE to determine whether the student was eligible for educational services under '504 of the Rehabilitation Act. On June 22nd, the last day of attendance for eighth grade students for the 1991-92 school year, respondent's CSE withdrew their previously recommended classification but found petitioner's daughter eligible for educational services under '504 of the Rehabilitation Act. The CSE recommended the same educational program it had previously recommended in its May 8th determination. On July 14th, respondent approved the CSE's recommendation. Petitioner subsequently requested an impartial hearing. Other than indicating that an impartial hearing was convened, the record does not indicate the outcome of such hearing.

The hearing on the disciplinary matter was finally scheduled and held on June 3rd. On June 5th, the superintendent adopted the hearing officer's findings of fact and recommendation that the student be suspended for the remainder of the school year. On September 1st, respondent heard petitioner's appeal of the superintendent's decision and unanimously affirmed that decision. Petitioner subsequently commenced this appeal.

Petitioner alleges that respondent violated her daughter's rights by suspending her under Education Law '3214 without a determination as to the nexus between her alleged behavior and handicapping condition. Petitioner also alleges that respondent violated the student's rights by not permitting the submission of evidence on her behalf at the hearing and by introducing evidence of the student's anecdotal disciplinary record prior to a determination of guilt on the charges. In addition, petitioner alleges that the penalty imposed at the hearing was harsh and excessive. Petitioner also alleges that respondent violated the student's rights by failing to provide her with appropriate educational services during her suspension. Petitioner requests that I nullify the student's suspension beyond the fifth day and order respondent to remove all references to the suspension from her records. Petitioner further requests that I order respondent to amend its policies and practices regarding student suspensions to prevent future violations of the nature alleged to have occurred in this case.

Respondent denies petitioner's allegations and asserts that the student was not classified as having a handicapping condition at any time during the 1991-92 school year and, therefore, was not entitled to the due process protections afforded by the Individuals with Disabilities Education Act. Respondent further asserts that it had no legitimate basis to suspect that the student suffered from an educationally handicapping condition in light of her academic performance. Respondent concedes that while the Notice of Hearing, which was accepted into evidence for purposes of the hearing, did contain copies of the student's disciplinary referrals, it argues that petitioner has failed to establish that the hearing officer considered the student's past disciplinary actions prior to making his findings of fact. Respondent alleges that petitioner's current challenge to the adequacy of the student's educational program during her suspension is moot because petitioner failed to challenge the adequacy of the student's homebound instruction at the time it was provided. Respondent also notes that the student passed her courses and was advanced to the next grade level. Furthermore, respondent contends that petitioner has no basis for complaint since all adjournments of the disciplinary hearing were at her request as part of an alleged strategy to delay the hearing pending the outcome of the CSE referral procedures. Respondent also contends that the appeal should be dismissed as untimely.

I must first address the issue of timeliness. Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal be instituted within 30 days from the making of the decision or the performance of the act complained of, provided that I may excuse a failure to timely commence the appeal for good cause shown. Before an appeal may be taken to the Commissioner of Education, the superintendent's determination in a student disciplinary hearing must first be appealed to the board of education (Education Law '3214(3)(c)). The record indicates that petitioner was formally notified of the board of education's determination by letter dated September 11, 1992. Petitioner therefore should have served her petition within thirty days of September 11th. Petitioner first served her petition on respondent on October 9th. However, that service was defective since the petition failed to contain the notice required by '275.11. After notification by my Office of Counsel of the defective service, petitioner made proper service upon respondent on November 4, 1992. In view of the important issue raised by this appeal and petitioner's cooperation in correcting her previously defective service, I will excuse petitioner's late filing of her appeal.

Whenever a student has a known disability or handicapping condition or school officials should reasonably suspect the student has a disability, the Education Law '3214 hearing process must be separated into several parts: the student's guilt on the charges must first be established, followed by a determination by the CSE or '504 committee, as appropriate, of whether the conduct underlying the charges was related to the disability or handicapping condition. If a nexus is found, a referral must be made to the CSE or '504 committee for evaluation in the case of a student with a suspected disability or if the student is already classified under IDEA or eligible under '504 for possible program modification (Honig v. Doe, 484 U.S. 305; Appeal of a Student with a Disability, 34 Ed Dept Rep , Decision No. 13408, dated May 4, 1995). If no nexus is found, yet a disability is indicated or has been identified, discipline may be imposed, but the student's placement cannot be changed without adhering to the due process requirements for changing the placement of a student with a disability or handicapping condition (Metropolitan School District, 969 F. 2d 485). Where no nexus is found, and no disability is indicated, the student may be suspended as appropriate.

The record establishes that petitioner's daughter was not formally determined to have a disability or handicapping condition until respondent approved, on July 14, 1992, the CSE's June 22nd recommendation that the student was eligible for educational services under '504 of the Rehabilitation Act. The issue then becomes to what extent do the procedural protections of '504 and the Individuals with Disabilities Education Act (IDEA) apply prior to a formal classification. As I noted in Appeal of Student with Disability, supra, although Education Law '3214 does not address the manner in which a school district may impose discipline on students with a disability, '3214 must be applied consistent with federal law and regulation. The federal Office for Civil Rights has determined that the procedural protections of '504 and IDEA are applicable when a school district has sufficient notice to suspect that the misconduct may be related to a disability (Fairfield-Suisun (CA) Unified School District, 14 EHLR 353:205 (1989); Kansas City (KS) U.S.D.#500; 14 EHLR 353:361 (1989) "Legal Rights of Persons with Disabilities: An Analysis of Federal Law" Tucker and Goldstein, pp.16:13-14, LRP Publications (1994)). While petitioner and respondent disagree on whether respondent had sufficient notice as early as January or March 1992, certainly respondent was put on notice of a possible connection between the student's misconduct and a disability when respondent's CSE recommended on May 8, 1992 that petitioner's daughter be classified as Other Health Impaired: Attention Deficit Hyperactivity Disorder. Even though respondent rejected the CSE's classification (the propriety of that decision being an issue in the impartial hearing and not under consideration here), respondent conceded in a letter from the superintendent to petitioner dated June 2, 1992 that "the Board is of the preliminary opinion that [the student] may well be handicapped for purposes of Section 504 of the Rehabilitation Act." In light of these events, respondent cannot claim that it had insufficient notice of a possible connection between the student's misconduct and a disability, whether under IDEA or '504, at the time of the '3214 hearing on June 3, 1992. Since there was no determination at the hearing as to whether the student's misconduct was related to a disability, respondent's determination affirming the suspension of petitioner's daughter for the remainder of the 1991-92 school year must be annulled, and any reference to the student's suspension beyond the fifth day must be removed from the student's records.

Since I have nullified the results of the disciplinary hearing, petitioner's further allegations regarding the conduct of the hearing are rendered moot and will not be addressed (Appeal of Bridges, 34 Ed Dept Rep 232). Also rendered moot are petitioner's allegations regarding the appropriateness of the alternative instruction the student received while under suspension. The record indicates that the student passed her courses and was advanced to the next grade. I note that petitioner could have commenced a separate appeal on this issue at any time her daughter was receiving such instruction, but did not do so. Finally, I decline to address any issues raised in this appeal concerning the student's classification by respondent's CSE and the implementation of the CSE's recommendations regarding classification and educational programs for the student, since those issues are the subject of an impartial hearing pursuant to '200.5(c) of the Commissioner's regulations.

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that respondent's suspension of petitioner's daughter for the remainder of the 1991-92 school year is annulled.

IT IS FURTHER ORDERED that respondent expunge the student's records of such suspension.

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