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Decision No. 13,610

Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by her parent, from action of the South Country Central School District regarding student suspension.

Decision No. 13,610

(May 18, 1996)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, attorneys for petitioner, Christopher Venator, Esq., of counsel

Van Nostrand & Martin, attorneys for respondent, Joanne Allar-Albertsen, Esq., of counsel

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

In 1991, respondent's committee on special education (CSE) classified petitioner's daughter ("X") as "emotionally disturbed." She remained so classified until March 1995 when, after reevaluation by respondent's CSE, she was declassified. At the time of the incident giving rise to this appeal, petitioner's daughter was an eleventh grade student in respondent's high school.

On September 21, 1995, during the course of an incident regarding a hall pass, petitioner's daughter allegedly punched the assistant principal in the jaw, spat in his face, and yelled curses and racial epithets. As a result of her actions, the principal suspended her for five days and scheduled a superintendent's hearing to consider further discipline. After a hearing held pursuant to Education Law '3214, respondent's superintendent adopted a hearing officer's recommendation to permanently exclude petitioner's daughter from respondent's schools. On November 20, 1995, petitioner, through her legal counsel, requested an impartial hearing to review the decision to declassify her daughter, which the superintendent denied as untimely. On December 1, 1995, respondent board affirmed the permanent suspension, and this appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on January 11, 1996.

Petitioner claims that the hearing was procedurally defective, violating her due process rights. Petitioner also claims that her daughter's behavior is a manifestation of her disability, and that as a student with a disability, she cannot be suspended for more than ten days. Petitioner also contends that her daughter's conduct does not warrant permanent suspension. Accordingly, petitioner requests that the suspension be reversed and her daughter's records expunged.

Respondent denies the alleged procedural defects and also maintains that petitioner's daughter is not disabled. Finally, respondent maintains that the behavior was sufficiently egregious to warrant permanent suspension.

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 (Appeal of a Student with a Disability, 35 Ed Dept Rep 22). The student's guilt on the charges must first be established. If guilt is found, a nexus determination by the CSE or '504 committee, as appropriate, must follow to determine whether the conduct underlying the charges was related to a disability or handicapping condition. Similarly, where a student has been declassified but later exhibits behavioral problems, there must be a nexus determination (Appeal of a Student with a Disability, 34 Ed Dept Rep 556; Jeffrey S. v. School Board of the Riverdale School District, 21 IDELR 1164). 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 the 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 556). Where no nexus is found, and no disability is indicated, the student may be suspended as appropriate (Appeal of a Student with a Disability, 35 Ed Dept Rep 22).

As noted above, it was appropriate for respondent to hold a '3214 hearing to determine whether or not petitioner's daughter had engaged in the conduct alleged. However, petitioner claims that the hearing was procedurally defective, violating her due process rights. She claims that the hearing officer improperly considered her daughter's anecdotal record in finding guilt, and that she was not given notice that it would be introduced. Respondent maintains that the hearing officer made his determination of guilt before reviewing the disciplinary record.

Generally, a student's anecdotal record may be received in evidence at a disciplinary hearing and considered only after a finding of guilt as to specific charges in order to fix the penalty (Appeal of Bowen, 35 Ed Dept Rep 136; Appeal of Homick, 34 id. 150; Appeal of Lewis, 33 id. 520). It is improper to consider a student's anecdotal record prior to a determination of the student's guilt (Matter of McMahon, 24 Ed Dept Rep 252). Here, the hearing officer did not clearly articulate findings of guilt on the record. However, the mere fact that the record may have been introduced prematurely does not, in and of itself, lead to the conclusion that the hearing officer's determination was wrong (Appeal of Norwood, 31 Ed Dept Rep 464; Appeal of Ezard, 29 id. 135; Matter of McMahon, supra). The decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Bowen, supra; Appeal of Homick, supra; Appeal of Lewis, supra). Here, my review of the record indicates that proof of X's guilt was overwhelming, even without consideration of her anecdotal record. Such proof was established through testimony of the victim and a witness. Even petitioner conceded in the petition that her daughter struck the assistant superintendent and exhibited other inappropriate behavior. Without evidence that the hearing officer was improperly influenced by the introduction of the student's anecdotal record prior to his determination of guilt, I find that its introduction constitutes harmless error (Appeal of Norwood, supra).

Petitioner also claims that her daughter's behavior is a manifestation of her disability, and that as a student with a disability, she cannot be suspended for more than ten days. She claims that no evaluation was done prior to declassification and that her request for an impartial hearing to review the decision was wrongly denied.

Respondent maintains that petitioner's daughter is not disabled, as she was declassified in March 1995, and points out that petitioner and her daughter agreed with the decision when it was made. An affidavit from the chairperson of respondent's CSE indicates that the decision was made based on evaluations conducted in January and April 1994 and that at the time of the determination, she was performing well academically as well as behaviorally. He concludes:

[The student] is able to profit from instruction and comprehends the consequences of her actions. However, she cannot be allowed to engage in willful violent behaviors and be protected under the mantle of a disability.

While I fully agree that the current provisions designed to prevent discrimination against the disabled should not be used in bad faith, I am disturbed by the premature nature of these conclusions by the CSE chair. I also find the student's grades and anecdotal record at the time of her declassification to be at odds with the chairperson's conclusions regarding her academic and behavioral performance. Petitioner provided her daughter's grades for the 1994-95 school year, which were all Ds and Fs, and her anecdotal record indicates that she had been suspended for 22 days during that year prior to her declassification.

Whether or not petitioner's daughter was classified as disabled at the time of the incident, respondent could not impose a penalty without first determining whether the behavior precipitating the '3214 hearing was related to a disability. As noted above, a school district may not ignore the possibility that a student's conduct was related to a disability merely based on a prior declassification determination. Respondent was well aware of the possibility of such a finding in this case due to the student's recent declassification, particularly in light of petitioner's request for a hearing on that decision. Therefore, I am remanding this matter to respondent to determine whether petitioner's daughter's behavior was related to a disability, and if so, to refer her to the CSE or '504 committee for evaluation.

Should respondent's CSE find that petitioner's daughter's behavior was not related to a disability, an appropriate penalty may be imposed. The hearing officer indicated that X's anecdotal record reveals 53 days of suspension since the beginning of the 1993-94 school year primarily for profanity, failure to follow rules, disruptive behavior, insubordination, and cutting class. However, 5 of the 53 days were for the current incident and therefore should not be considered in addition to the finding of guilt. More importantly, 37 of the 53 days of suspension occurred while petitioner's daughter was classified as emotionally disturbed. Since for short-term suspensions there is no determination as to whether the behavior was disability-related, it would be inappropriate in this case to now consider such incidents in assessing an appropriate penalty. Therefore, there are 11 days suspension which respondent may properly consider in addition to the current incident in determining the appropriate penalty in this matter.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the Board of Education of the South Country Central School District refer petitioner's daughter to its CSE or '504 committee as appropriate for evaluation to determine if her conduct in this matter was related to a disability.

IT IS FURTHER ORDERED that if such committee finds that petitioner's daughter's behavior was related to a disability, respondent shall expunge from her records any penalty imposed in connection with this matter.

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