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Decision No. 14,204

Appeal of A STUDENT SUSPECTED OF HAVING A DISABILITY, by his parent, from action of the Board of Education of the Hempstead Union Free School District regarding student suspension.

Decision No. 14,204

(August 30, 1999)

Long Island Advocacy Center, attorney for petitioner, Deborah R. Monheit, Esq., of counsel

Berkman, Henoch, Peterson & Peddy, P.C., attorney for respondent, Roslyn Z. Roth, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals her son's suspension from school from January 4, 1999 until February 22, 1999. The appeal must be sustained in part.

In the evening of December 16, 1998, petitioner received a telephone call from the assistant principal of the middle school her son attended. She was advised that her son was suspended for allegedly harassing female students, for assaulting a student, and for threatening students. She was told that he was not to return to school until after a suspension hearing was held.

On December 17, 1998, the superintendent issued a written notice that petitioner's son would be the subject of a student suspension hearing on January 8, 1999, on charges of sexual harassment, assault and threats to students. The public schools in the Hempstead Union Free School District were closed for winter vacation from the date of the notice, December 17, 1998, until January 4, 1999. On January 1, 1999, petitioner referred her son for evaluation by the Committee on Special Education (CSE) of the Board of Education of the Hempstead Union Free School District ("respondent"). On January 8, 1999, the hearing was adjourned until January 27, 1999, at petitioner's request, for the purpose of obtaining counsel. Her son remained on suspension with home tutoring.

The suspension hearing was held on January 27, 1999, and the hearing officer found petitioner's son guilty of the charges. At the hearing, petitioner claimed that her son, who was de-classified by the CSE in 1994, was a student with a disability for discipline purposes. Petitioner argued that her son had previously been classified by the CSE as "emotionally disturbed" and continued to receive medication from the school nurse for attention deficit hyperactivity disorder (ADHD). The hearing officer agreed with respondent that petitioner's son was not a student with a disability when he engaged in the behavior for which he was charged, and ended the hearing by requesting confirmation of the January 1, 1999 referral to the CSE for a determination of the student's current eligibility for special education services. The superintendent concurred with the hearing officer's findings and found that petitioner's son was not currently a student with a disability. The superintendent suspended petitioner's son for thirty-one days until February 22, 1999. Petitioner commenced this appeal on February 22, 1999.

Petitioner contends that she received no written notice of the assistant principal's suspension of her son and was not advised of her right to request an informal conference. Respondent does not deny that petitioner received no written notification of the suspension pending the superintendent's hearing or of the right to request an informal conference.

Education Law "3214(3)(b) provides that, in the case of a suspension by a principal 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(l)(4):

  1. 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 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… (emphasis added)

The purpose of "100.2(l)(4) is to require that the parents of a student suspended for five days or less are made aware of the statutory right provided in Education Law "3214(3)(b) to question the complaining witnesses in the presence of the principal who imposed the suspension in the first instance. This procedure affords the principal the opportunity to decide whether his original decision to suspend was correct or should be modified. It is insufficient to provide merely an opportunity to speak to the principal without the complaining witnesses present, or an opportunity to speak to the complaining witness without the principal present (Appeal of Milano, 37 Ed Dept Rep 472, Decision No. 13,908; Appeal of Pinckney, 37 id. 284, Decision No. 13,860; Appeal of Jones, 35 id. 1, Decision No. 13,444).

In this case, respondent failed to comply with law in more than one respect. First, respondent did not immediately notify petitioner in writing that her son had been suspended from school. Although the assistant principal informed petitioner of the suspension by telephone, notification by telephone is required by "100.2(l)(4) in addition to written notice, where possible, and not as a substitute (Appeal of a Student with a Disability, 38 Ed Dep Rep 378, Decision No. 14,059; Appeal of Milano, supra).

Secondly, petitioner was advised by the assistant principal of her son's suspension until after the hearing. However, pursuant to Education Law "3214(3)(a) and (b), an assistant principal is not authorized to suspend students from class (Matter of Caulfield, 18 Ed Dept Rep 574, Decision No. 9973, overruled on other grounds; Matter of Sehr, 17 id. 45, Decision No. 9484; Matter of Corbett, 12 id. 184, Decision No. 8599). Accordingly, the suspension imposed by the assistant principal in effect from January 4, 1999 until the superintendent's February 1, 1999 decision must be annulled and expunged from the student's record (Appeal of Milano, supra; Appeal of Pinckney, supra; Appeal of Jones, supra).

Petitioner also challenges the suspension imposed by the superintendent after the January 27, 1999 hearing and requests an order directing respondent to readmit her son. Respondent contends that the appeal should be dismissed as moot because the student was readmitted on February 22, 1999, and because petitioner did not appeal the superintendent's February 1, 1999 decision to the board of education. Petitioner contends that her failure to exhaust her administrative remedies by appealing to the board should be excused because she did not receive the superintendent's written decision until February 25, 1999, in response to her petition in this appeal. Respondent contends that it provided a copy of the superintendent's decision by certified letter dated February 1, 1999, but that petitioner did not claim this letter.

Petitioner's appeal of the proposed suspension hearing 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, a hearing had occurred, a superintendent's decision had been rendered but 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 a Student Suspected of Having a Disability, 38 Ed Dept Rep 641, Decision No. 14,108; Appeal of Evette G., 37 id. 192, Decision No. 13,839; Appeal of Doty, 35 id. 134, Decision No. 13,490).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent's suspension of petitioner's son from January 4, 1999 through February 1, 1999, be annulled and expunged from his record.

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