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Decision No. 13,988

Appeal of LAUREEN L., on behalf of her son, MICHAEL L., from action of the Board of Education of the Sachem Central School District, relating to student discipline.

Decision No. 13,988

(August 17, 1998)

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

Ingerman, Smith, L.L.P., attorneys for respondent, Christopher Venator, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals the suspension of her son, Michael, by the Board of Education of the Sachem Central School District ("respondent") from the district's summer school program and requests that any reference to the suspension be expunged from his records. The appeal must be dismissed.

Michael was a sixteen-year-old tenth grade student enrolled in respondent's 1997 summer school session. On July 8, 1997 a false fire alarm was activated at the Sachem South Campus during class hours. An immediate investigation ensued to identify the cause.

The fire alarm in question was designed to leave ink stains on the hands of anyone activating the alarm. Two students were found with ink stained hands, but further examination showed that the ink matched that of their own pens. However, one of the students questioned said he saw the person who activated the alarm and gave a physical description of that individual. The student subsequently identified Michael as the person who pulled the fire alarm. Michael also had ink on his fingers, but denied pulling the alarm and suggested that another student would confirm his innocence. However, when that student was contacted by the summer school principal, she also indicated that she saw Michael pull the alarm.

The summer school principal then contacted petitioner and told her that an informal hearing would be held at 8:30 a.m. the next morning, July 9, to discuss the incident. On July 9, petitioner and Michael met with the summer school principal and assistant principal. The two witnesses also attended that meeting with their parents, and petitioner was allowed to question them. By letter dated July 9, 1997, the principal permanently suspended Michael for the remainder of the summer session. Petitioner then contacted respondent's attorney, who informed her that the suspension would not be modified. This appeal ensued. On August 1, 1997, the Commissioner denied petitioner's request for interim relief.

Petitioner contends that Michael was denied due process in this matter, as well as two other incidents where he was suspended from two classes during the 1996-97 regular school year. Petitioner claims that she did not receive written notice of the charges and did not have enough time and information to effectively prepare for the meeting with the summer school principal. Petitioner contends that the suspension was based on inconclusive and contradictory evidence, that the summer school principal lacked the authority to suspend Michael, and that no alternative education has been provided either for this suspension or for the ones during the regular school year. Petitioner also alleges that respondent should have investigated Michael's poor performance in school to determine if he has a disability and requests that I make a determination that Michael is a student suspected of having a disability. She further requests that the suspensions be expunged from Michael's records, that he be provided with compensatory education and that I order respondent to revise and/or develop policy guidelines regarding the summer school principal's authority to impose long-term suspensions.

Respondent argues that petitioner's contentions regarding her son's suspensions during the 1996-97 regular school year are untimely, and, in any event, petitioner failed to follow respondent's articulated appeal process. Respondent contends that it provided Michael with adequate due process before suspending him from summer school and argues that the procedural due process requirements of Education Law "3214 do not apply to summer school programs.

Petitioner's allegations regarding Michael's suspensions during the 1996-97 regular school year must be dismissed as untimely. Pursuant to "275.16 of the Commissioner's Regulations, an appeal to the Commissioner of Education under "310 of the Education Law must be brought within 30 days of the action complained of, unless excused by the Commissioner for good cause shown. Respondent asserts that Michael was dropped from one class in May 1997 and denied credit for a second on June 4, 1997. Petitioner commenced this appeal July 18, 1997, more than 30 days from those acts and has not offered any reason for her delay. Therefore, petitioner's allegations regarding those events are untimely and are dismissed.

Petitioner's arguments regarding the summer school suspension must also be dismissed. The procedures set forth in Education Law "3214 regarding student discipline are not applicable to students attending summer school (Application of Olsen, 40 Misc. 2d 246; Appeal of Bussfeld, 34 Ed Dept Rep 383). However, disciplinary action cannot be imposed on a student attending school in complete disregard of due process (SeeGoss v. Lopez, 419 U.S. 565). Minimal due process requires that an individual be afforded "an opportunity to appear informally before the person or body authorized to impose discipline and to discuss the factual situation underlying the threatened disciplinary action." (SeeMatter of O'Connor v. Bd. of Ed., 65 Misc 2d 40, 43). In this case, petitioner was given the opportunity to meet and discuss the incident with the summer school principal and the witnesses. Accordingly, I find that adequate due process was provided.

Petitioner's remaining contentions are similarly without merit. Attendance at summer school programs are voluntary and not compulsory. Therefore, the provisions of Education Law "3214 regarding compensatory education and the authority of principals to permanently suspend students are not applicable in this case. In addition, the record shows that Michael signed a summer school contract that clearly indicated that pulling a false fire alarm would result in being dropped from the program.

Finally, petitioner's request that I determine that Michael is a student suspected of having a disability must be dismissed. The record shows that petitioner has already referred Michael to the local committee on special education ("CSE") for a disability determination pursuant to Education Law "4401-a. If petitioner is not satisfied with the CSE's determination, she may appeal to an impartial hearing officer ("IHO") and may appeal the IHO's decision to the State Review Officer (Education Law "4404). Here, petitioner seeks relief from the Commissioner without first completing this process. Therefore, this portion of the petition must be dismissed for failure to exhaust administrative remedies.

THE APPEAL IS DISMISSED.

END OF FILE