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Decision No. 13,980

Appeal of A STUDENT SUSPECTED OF HAVING A DISABILITY, by his parent, from action of the Southampton Union Free School District regarding student discipline.

Decision No. 13,980

(August 5, 1998)

 

Leon & Deffet, attorneys for petitioner, Michael E. Deffet, Esq., of counsel

Richard S. Fernan, Esq., attorney for respondent

CATE, Acting Commissioner.--Petitioner appeals the actions of the Southampton Union Free School District ("respondent") regarding the suspension of her son. The appeal must be sustained in part.

During the 1996-97 school year, petitioner's son was in the third grade. By letter dated April 18, 1997, respondent's elementary school principal notified petitioner that she was suspending her son for five days for "conduct that endangers the safety, morals, health or welfare of others" and was recommending a superintendent's hearing. By letter dated April 23, 1997, the superintendent notified petitioner that an "informal hearing" would be held "in regard to her son's current status as a student in the Southampton Elementary School." Petitioner attended the hearing, which was held on April 30, 1997. By letter dated May 12, 1997, the superintendent notified petitioner that her son would be provided an alternative education program (i.e., home tutoring) for the balance of the 1996-97 school year and that his return to regular attendance in September 1997 was dependent on (i) full cooperation in completing the alternative program, (ii) a full psychological/psychiatric evaluation conducted at the district's expense, and (iii) his participation in a regular counseling program arranged by his family.

On June 16, 1997, petitioner appealed her son's suspension to the board of education. By letter dated June 25, 1997, respondent's board president notified petitioner that it would respond after the board had investigated the situation. This appeal ensued. Petitioner requested (i) an interim order allowing her son to return to school, (ii) an interim order requiring respondent to provide compensatory education for respondent's delay in providing alternative education, (iii) a determination that her son is a student suspected of having a disability and is entitled to the appropriate protections provided by the Individuals With Disabilities Education Act (IDEA) and Article 89 of the Education Law, (iv) a determination that the suspension was unlawful and expungement of the suspension record, and (v) an order requiring respondent to revise and/or develop written policy guidelines regarding student suspension. Petitioner's request for interim relief pending a determination on the merits was granted on August 18, 1997, to the extent that her son be allowed to resume attendance at respondent's public schools.

Petitioner alleges that her son was unlawfully suspended -- specifically, that the district did not provide written notice of charges, that the superintendent unlawfully reviewed her son's school file prior to the hearing, and that the district did not provide notice regarding her due process rights with regard to discipline or special education. She alleges that no ' 3214 hearing was held. Rather, an "informal hearing" was held at which, she alleges, there was no eyewitness testimony, petitioner was prevented from questioning witnesses, no record of the proceeding was made, she was not advised of her right to an attorney and she was deceived as to her right to appeal to the board of education or to the Commissioner of Education. Petitioner also alleges that her son received no alternative educational services for more than two weeks after he was suspended. Finally, petitioner argues that respondent's decision is intentionally vague, unspecific, contradictory, indefinite and in violation of the IDEA and Article 89 of the Education Law.

According to respondent, petitioner's son has a history of discipline problems and has been removed from school on a number of occasions. Respondent claims that in April 1997, the student's teacher found him in possession of a soap dispenser which had been broken off the sink in the school bathroom. The principal investigated the incident and called petitioner, who allegedly refused to provide restitution. The same day, two of the student's female classmates allegedly informed their teacher that petitioner's son had exposed himself to them and made obscene gestures. Another female classmate allegedly said that petitioner's son told her he wanted to have sex with her and would kill her if she told anyone.

The school principal investigated the allegations of sexual harassment, determined that they were true, informed petitioner that she was suspending her son for five days and referred the matter to the superintendent. The superintendent, with petitioner's alleged consent and agreement, held an "informal hearing," which resulted in the superintendent's recommendations that the student be placed on home instruction and that he be evaluated and attend counseling. According to respondent's superintendent:

The "informal hearing" was not a suspension hearing. It was designed as a meeting to address serious issues concerning Petitioner's son and was designed to protect his interests. . . . As a result of the "informal hearing" the Petitioner's son was not suspended for any period beyond the five day suspension levied by the building principal. It was by agreement with Petitioner and with the best interests of the child at heart.

Respondent maintains that its actions were legal and that it has written policy guidelines regarding student suspension. It claims that it had no knowledge that petitioner's son had a disability. Respondent also explains that the delay in commencing the student's home instruction was due to petitioner's request that the tutor be a black male, but that tutoring was provided for the full day, rather than for only the mandated time.

Respondent contends that the petition was not properly verified and that the appeal is untimely. Commissioner's regulation ' 275.5 requires a petition to be verified by at least one of the petitioners. The petition sent to my Office of Counsel contains a verification by petitioner. While it is regrettable that respondent's copy did not contain a verification, I will not dismiss the appeal for lack of verification (Appeal of a Student with a Disability, 37 Ed Dept Rep 70; Appeal of Moravia Teachers' Ass'n, 36 id. 413).

Respondent also contends that the appeal is untimely. An appeal to the Commissioner of Education pursuant to Education Law ' 310 must be commenced within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR ' 275.16). The date from which the 30-day limitation runs is the date of respondent's final determination (Appeal of Matero, 36 Ed Dept Rep 242). Here, part of petitioner's complaint is respondent's failure to provide a final determination. Thus, petitioner's claims that respondent suspended her son without due process constitute allegations of a continuing wrong, and I will therefore not dismiss the appeal as untimely (Appeal of a Student With a Disability, 33 Ed Dept Rep 101).

Commissioner's regulation ' 100.2(l)(4) governs student suspensions of five days or less. The regulation requires that the district notify the parents in writing, providing a description of the incident(s) which resulted in the suspension and informing them of their right to request an immediate informal conference with the principal. In the instant case, the April 18, 1997, letter from the elementary school principal notified petitioner that her son would be suspended for five days. The reason for the suspension was given as "conduct that endangers the safety, morals, health or welfare of others." The notice neither described the incident(s) which resulted in the suspension nor informed petitioner of her right to request an immediate informal conference with the principal. Therefore, I conclude that respondent deprived petitioner and her son due process with respect to his five-day suspension.

Education Law ' 3214(3)(c) governs suspensions in excess of five days, providing, in pertinent part:

No pupil may be suspended for a period in excess of five school days unless such pupil and the person in parental relation to such pupil shall have had an opportunity for a fair hearing, upon reasonable notice, at which such pupil shall have the right of representation by counsel, with the right to question witnesses against such pupil and to present witnesses and other evidence on his behalf. . . . A record of the hearing shall be maintained. . . . An appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it.

Respondent contends that petitioner's son was not "suspended." However, in his May 12, 1997, letter to petitioner, the superintendent indicated that an "informal hearing" had been held "in regard to her son's status as a student," and that after reviewing the reports presented by four individuals (one of which was the elementary school principal), the superintendent determined to educate the student through an alternative education program for the balance of the school year. When, as a result of misconduct, a student is removed from regular school attendance and receives alternative education at home, he has been "suspended" within the meaning of Education Law ' 3214, regardless of the terminology the district wishes to use. Such removal or suspension in excess of five days must adhere to the procedures required by ' 3214(3)(c). Here, petitioner was deprived the due process protections guaranteed by ' 3214, including a fair hearing and an appeal to the board of education.

Respondent argues that petitioner agreed to the informal hearing and to the superintendent's recommendations, implying that petitioner waived her right to the due process provided for in ' 3214. "A waiver is the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it" (Werking v. Amity Estates, 2 NY2d 43, 52). However, a waiver "should not be lightly presumed" (Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966, 968). Upon my review of the record I find no evidence that petitioner was aware of her rights or that she intentionally relinquished them.

Furthermore, petitioner contends that her son was a student suspected of having a disability and that he was not afforded the due process prescribed by the IDEA or Article 89 of the Education Law. Respondent contends that it had no knowledge that petitioner's son had a disability. However, the superintendent required the student to receive a full psychological/psychiatric examination. Therefore, he apparently suspected petitioner's son of having a disability.

Whenever a student has a known disability or handicapping condition, or school officials should reasonably suspect that the student has a disability, the Education Law ' 3214 hearing process must be separated into several parts. First, the district must establish whether the student has committed the conduct charged. If such conduct is established, the Committee on Special Education ("CSE") or ' 504 committee, as appropriate, must determine whether the conduct underlying the charges is related to a disability or handicapping condition (Appeal of a Student with a Disability, 35 Ed Dept Rep 22; Appeal of a Student with a Disability, 34 id. 556). If a nexus is found, no discipline may be imposed. Rather, a referral must then 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). If no nexus is found, yet a disability is indicated or has been identified, discipline may be imposed, but certain procedural rights must be provided (Appeal of a Student with a Disability, 35 Ed Dept Rep 22).

Therefore, if school officials suspected petitioner's son of having a disability, the superintendent should first have held a ' 3214 hearing (as discussed above) on the question of whether the student committed the conduct charged. If such conduct had been established, the CSE or ' 504 committee should have determined whether the conduct underlying the charges was related to a disability or handicapping condition. If a nexus had been found, no discipline may have been imposed. Rather, a referral should then have been made to the CSE or ' 504 committee for evaluation. If no nexus had been found, discipline could have been imposed.

Finally, the penalty imposed by respondent was inappropriate. A school district cannot condition a student's return to school on participation in counseling services (Appeal of Alexander, 36 Ed Dept Rep 160; Appeal of Ward, 27 id. 217).

In summary, I conclude that respondent failed to provide petitioner's son with the due process to which he was entitled as a student suspected of having a disability. Respondent also failed to provide the due process protections guaranteed by ' 3214 in connection with a suspension of more than five days as well as the procedural protections provided for in "100.2(1)(4) of the Commissioner's regulation with regard to the student's initial five day suspension. Also, respondent's attempt to condition the student's return to school on his participation in counseling services, was inappropriate.

I urge respondent to review its student discipline policy to ensure compliance with state and federal laws, particularly in light of recent amendments to the IDEA.

THE APPEAL IS SUSTAINED to the extent indicated.

IT IS ORDERED that respondent expunge all references to the student's suspension and/or home instruction from his disciplinary records.

IT IS FURTHER ORDERED that, if it has not yet done so, the Southampton Union Free School District immediately refer petitioner's son to its CSE or ' 504 committee, as appropriate, for evaluation.

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