Decision No. 14,088
Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by his parent, from action of the Board of Education of the Smithtown Central School District regarding student suspension.
Decision No. 14,088
(March 12, 1999)
Geraldine Leon, Esq., attorney for petitioner
Peter G. Albert, Esq., attorney for respondent
MILLS, Commissioner.--Petitioner appeals her son's suspension and the scheduling of a hearing by the associate superintendent of the Smithtown Central School District to determine if her son engaged in conduct warranting suspension for more than five days. The appeal must be sustained in part.
On January 17, 1997, the associate superintendent issued a notice that petitioner's son would be subject to a student suspension hearing pursuant to Education Law "3214 on January 28, 1997, on charges that he was abusive to a staff member on January 14, 1997; caused a disturbance in the boys' room on January 14, 1997; was abusive to a staff member on January 10, 1997; did not report to detention as assigned on January 10, 1997; displayed disruptive behavior in detention on January 7, 1997; was insubordinate to a staff member on December 12, 1996 and January 3, 1997; climbed a pole in the cafeteria on December 11, 1996; cut class on December 9, 1996; and displayed disruptive and insubordinate behavior in detention on December 6, 1996. The notice also stated that, at petitioner's request, "the hearing is adjourned and it is agreed that your son's out-of-school suspension is continued until the date of the hearing and home instruction will be provided pending the outcome of the hearing."
On February 3, 1997, the associate superintendent issued a revised notice that rescheduled the suspension hearing to February 12, 1997, identified the four staff members who reported the behavior for which petitioner's son was charged and reduced the number of charges to five alleged incidents occurring on December 12, 1996 and January 3, 7, 10, 14, 1997. The notice again confirmed that petitioner's son's out-of-school suspension would continue until the date of the hearing.
Petitioner commenced this appeal on February 5, 1997, seeking a determination that the Board of Education of the Smithtown Central School District ("respondent") failed to provide proper notice regarding the scheduled suspension hearing; that the scheduled suspension hearing may not take place as no proper grounds exist to support such a hearing; that her son must be immediately referred to the Section 504 Committee or the Committee on Special Education (CSE) for proper review of independent evaluation reports to be obtained by petitioner; that respondent has improperly attempted to discipline and remove her son when it knew or should have known that he was a student suspected of having a disability; and that respondent reimburse petitioner for out-of-pocket expenses incurred for independent evaluations she will obtain. Petitioner's request for interim relief was denied on February 21, 1997.
Petitioner states that her son is not currently classified as a student with a disability but contends that he has experienced physical tics, academic difficulties and disruptive behavior throughout the past three years that should have resulted in a referral to respondent's CSE. Petitioner also contends that respondent is improperly attempting to suspend her son for a series of previous disciplinary problems as opposed to suspending him for a specific current act of misconduct. In addition, petitioner contends that respondent failed to provide her with notice regarding her right to an informal conference with respect to the short-term suspension already imposed on her son.
Respondent offers as affirmative defenses that the appeal should be dismissed as premature and for failure to state a claim upon which relief can be granted. Petitioner further argues that, notwithstanding the allegations that petitioner's son has a disability, the appeal should be dismissed because, under Education Law "3214, a suspension hearing may proceed without first determining whether a student's behavior was related to a disability. Petitioner did not submit a reply.
Petitioner's claim that respondent suspended her son without providing her notice of her right to an informal conference has merit. Education Law "3214(3)(b) provides that, in the case of suspension for a period not to exceed five days, the student and his parents "shall, on request, be given an opportunity for an informal conference with the principal at which the person in parental relation shall be authorized to ask questions of the complaining witnesses." Notice of the right to request an informal conference is required under 8 NYCRR "100.2(1)(4) which provides:
(4) Parental notice of student suspensions. Where a student is suspended from attendance for a period of five days or less pursuant to section 3214(3) of the Education Law, school district officials shall immediately notify the parents or the persons in parental relation in writing that the student has been suspended from school. Written notice shall be provided by personal delivery, express mail delivery, or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the suspension at the last known address or addresses of the parents or persons in parental relation. Where possible, notification shall also be provided by telephone if the school has been provided with a telephone number(s) for the purpose of contacting parents or persons in parental relation. Such notice shall provide a description of the incident(s) which resulted in the suspension and shall inform the parents or persons in parental relation of their right to request an immediate informal conference with the principal in accordance with the provisions of Education Law, section 3214(3)(b). Such notice and informal conference shall be in the dominant language or mode of communication used by the parents or persons in parental relation to the suspended pupil.
The written notices provided to petitioner on January 17 and February 3, 1997 refer to continuing her son's out-of-school suspension without informing her of the right to an opportunity for an informal conference with the principal at which petitioner could ask questions of complaining witnesses. The record contains no other notice provided to petitioner by respondent. Accordingly, respondent's suspension of petitioner's son in effect on January 17 until the February 12, 1997 hearing must be annulled and expunged from the student's record (Appeal of a Student with a Disability, 38 Ed Dept Rep 378; Appeal of Milano, 37 id. 472; Appeal of Pinckney, 37 id. 284; Appeal of Jones, 35 id. 1).
Petitioner's appeal of the proposed suspension hearing to determine whether to impose a suspension in excess of five days is premature and must be dismissed for lack of jurisdiction. Education Law "3214(3)(c) provides in pertinent part:
…Where a pupil has been suspended in accordance with this section by a superintendent of schools… the superintendent shall personally hear and determine the proceeding or may, in his discretion, designate a hearing officer to conduct the hearing… The hearing officer shall make findings of fact and recommendations as to the appropriate measure of discipline to the superintendent. The report of the hearing officer shall be advisory only, and the superintendent may accept all or any part thereof. 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. The board may adopt in whole or in part the decision of the superintendent of schools…
At the time this appeal was filed, no hearing had occurred, no superintendent's decision had been rendered and no appeal to the board of education had been commenced. As a result, this appeal came to me prior to the exhaustion of the administrative remedies specifically provided by statute, which must be pursued before an appeal to the Commissioner may be commenced (Appeal of Evette G., 37 Ed Dept Rep 192; Appeal of Doty, 35 id. 134; Appeal of a Child with a Disability, 33 id. 672.
To the extent petitioner challenges respondent's alleged failure to refer her son to its CSE and to reimburse her for independent evaluations, petitioner must exhaust her remedies under Education Law "4404. Petitioner herself may make a referral to the CSE and the CSE must, in the first instance, determine the child's eligibility to receive special education services (Education Law "4402, NYCRR "200.5(c)). If petitioner disagrees with the CSE's evaluation, she may request an independent evaluation at public expense (8 NYCRR "200.5(1)(vi)(a)). If petitioner disagrees with the eligibility determination of the CSE, she may request an impartial hearing pursuant to Education Law "4404(1) and 8 NYCRR "200.5(d). If either party is dissatisfied with the hearing officer's decision, it may seek review by the State Review Officer pursuant to Education Law "4404(2).
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that respondent's suspension of petitioner's son in effect on January 17 until the hearing scheduled February 12, 1997, be annulled and expunged from his record.
END OF FILE