Decision No. 13,543

(January 30, 1996)

MILLS, Commissioner.--Petitioner appeals respondent's suspension of his son from school. Petitioner commenced two separate appeals, which I have consolidated for decision. The appeals must be dismissed.

Petitioner's son is nine years old and has been diagnosed with asthma, allergies, and behaviors suggesting attention deficit hyperactivity disorder. He is classified as multiply disabled by respondent's committee on special education (CSE) and has an individualized education program (IEP).

On March 30, 1995, petitioner's son allegedly punched a teacher's aide and was suspended for three days from Friday, March 31, 1995 through Tuesday, April 4, 1995. An informal conference was held on March 30, 1995 with petitioner, the principal and the student's teacher, who witnessed the incident. The principal informed petitioner at that time that the teacher's aide had been taken to the hospital but would be available for questioning at a later date. Arrangements were made for a special education teacher to tutor petitioner's son at home for one hour each day during his suspension.

Because petitioner's son was suspended earlier in the school year and the addition of this three-day suspension would result in a cumulative suspension exceeding ten days, a meeting of the CSE was scheduled for April 4, 1995 to review his IEP and determine if a change in placement was warranted. Petitioner was informed of the CSE meeting date by telephone on March 31, 1995 and written notice dated that same day. Petitioner responded on April 1, 1995 by requesting that the CSE meet at a later date and that the school physician and parent member attend.

When petitioner objected to holding the CSE meeting prior to the tenth cumulative day of his son's suspension, respondent obtained a temporary restraining order (TRO) on April 4, 1995 from New York Supreme Court Justice George A. Murphy to exclude the student from attending school. After a hearing at which petitioner appeared on April 12, 1995, New York Supreme Court Justice Geoffrey O'Connell issued an order continuing the TRO. The TRO prohibits the student from attending classes and directs petitioner to keep his son at home "where he will receive home instruction at school district expense until further order of this court."

On April 19, 1995, petitioner commenced this appeal challenging respondent's suspension of his son on March 30, 1995, December 14, 1994 and October 13, 1994. Respondent answered on May 31, 1995. Petitioner served another petition on April 25, 1995 requesting a stay of the court's TRO. Respondent opposed the stay request on April 28, 1995 and answered the second petition on May 5, 1995.

On April 28, 1995, petitioner moved to vacate the TRO on the ground that an appeal to the Commissioner of Education is pending between the parties for the same cause of action.

Petitioner requests that his son's suspensions on March 30, 1995, December 14, 1994 and October 13, 1994 be declared illegal and expunged from his student record. Petitioner also asks, interalia, for an order specifically vacating the TRO and compelling respondent to provide his son and all other students with a tutor during their suspension for at least the same number of hours of instruction and within the hours specified for instruction for students attending the public schools of the district.

Petitioner contends that he was denied the right to question respondent's complaining witnesses regarding each of the suspensions. Petitioner also contends that respondent failed to provide his son with a tutor immediately following the suspensions. Petitioner further asserts that the TRO was improperly granted in violation of Honig v. Doe, 484 U.S. 305 (1988) as a form of coercion because he would not attend the April 4, 1995 meeting of the CSE. Finally, petitioner claims that respondent willfully violated the TRO when it failed to provide his son with home instruction on four occasions and that the home instruction being provided is not substantially equivalent to the instruction provided to students attending respondent's schools.

Respondent contends that petitioner's son is lawfully excluded from its schools pursuant to a TRO granted consistent with Honig v. Doe, supra, that petitioner is barred from seeking an order from the Commissioner of Education terminating the exclusion because he has already sought and been denied similar relief in the judicial action pending in the New York State Supreme Court, Nassau County, and that the issue is now moot. Respondent also contends that claims based on events occurring more than 30 days prior to service of the petition are time barred. Respondent further contends that petitioner's son was provided due process when he was suspended for less than five days by the principal, including the opportunity for an informal conference and to question the child's teacher.

Regarding the timeliness of this petition, an appeal must be instituted within 30 days from the making of the decision or the act complained of (8 NYCRR 275.16). In this instance, two of petitioner's claims involve suspensions that occurred in 1994, and this appeal was commenced more than 30 days thereafter. Accordingly, to the extent that this appeal seeks to challenge actions regarding suspensions that occurred during 1994, it is untimely and must be dismissed. Petitioner's claim regarding the March 30, 1995 suspension, however, is timely.

In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163) and the burden of demonstrating a clear legal right to the relief requested (Appeal of DiMicelli, 28 Ed Dept Rep 327; Appeal of Amoia, 28 id. 150). With regard to petitioner's remaining claims regarding the March 30, 1995 suspension and subsequent court-ordered exclusion, petitioner has failed to meet his burden of proving respondent acted unreasonably. Because cumulative suspensions of 10 days or more may amount to a change of placement under the Individuals with Disabilities Education Act (IDEA, 20 USC '1415(e)(3)), and petitioner withheld parental consent to such a change, respondent was justified in obtaining a court order to implement the latest three-day suspension with home instruction (see, Honig v. Doe, 484 U.S. 305, 325n.8; Appeal of a Student with a Disability, 34 Ed Dept Rep 204; Appeal of a Student with a Disability, 33 Ed Dept Rep 16; Fields, 1978-87 EHLR 211:437, U.S. Dept. of Educ. Office for Civil Rights). It is under these circumstances that respondent obtained the TRO on April 4, 1995. The record indicates that petitioner appeared before the court at a hearing on April 12, 1995 when the TRO was extended, made a motion to vacate the TRO on April 28, 1995, and continues to be a party to the litigation.

Concerning petitioner's request that I overturn the TRO, it is beyond the jurisdiction of the Commissioner of Education to review such a judicial determination. Moreover, I must dismiss the remainder of the petition regarding the March 30, 1995 suspension, the student's current exclusion, and the continuing home instruction because, having litigated the same claims in court and received an adverse determination, petitioner is barred by the doctrine of res judicata from relitigating those claims in this proceeding (Appeal of Bach, 34 Ed Dept Rep. 130; Appeal of Hochhauser, et al., 34 id. 580; Appeal of Friedman, 32 id. 447).

Although I lack jurisdiction to review the court's continued exclusion of petitioner's son, given his age and special educational needs, I urge the parties to work together with the court to return the student to an appropriate in-school placement as soon as possible.

THE APPEALS ARE DISMISSED.

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