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Decision No. 14,368

Appeal of A STUDENT WITH A DISABILITY from action of the Board of Education of the Connetquot Central School District, the Board of Education of the Kings Park Central School District and the Board of Cooperative Educational Services for the Third Supervisory District of Suffolk County regarding the provision of special education.

Decision No. 14,368

(May 19, 2000)

Pamela Phillips Tucker, Esq., attorney for petitioner

Guercio & Guercio, Esqs., attorneys for respondent Board of Education, Connetquot Central School District, Randy Glasser, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondents Board of Education, Kings Park Central School District and Board of Cooperative Educational Services, Christopher Venator, Esq., of counsel

MILLS, Commissioner.--Petitioner initiated two appeals challenging the refusal of respondent Board of Education of the Kings Park Central School District ("Kings Park") to permit her son's continued attendance at the Kings Park High School in an Alternative Learning Center ("ALC") operated there by the Board of Cooperative Educational Services for the Third Supervisory District of Suffolk County ("BOCES"). Because both appeals set forth identical facts and issues and seek the same relief, they are consolidated for decision. The appeals must be sustained.

Petitioner and her son reside in the Connetquot Central School District. Petitioner's son is a student with a disability identified by the Connetquot committee on special education ("CSE"). For the 1997-98 and 1998-99 school years, the Connetquot CSE recommended placement of petitioner's son in an Alternative Learning Center operated by BOCES, located at the Kings Park High School in the Kings Park Central School District. Petitioner's son attended the BOCES ALC at Kings Park High School for both school years. On April 22, 1999, petitioner's son was suspended for five days for making inappropriate, disturbing remarks relating to the shooting at Columbine High School in Colorado. That same day, he was charged with threatening a student on the school bus and was suspended for an additional five days. Kings Park also recommended that petitioner immediately obtain a psychiatric evaluation of her son. Petitioner's son received home tutoring pursuant to a recommendation by the Connetquot Central School District, pending receipt of the additional evaluations.

Petitioner obtained two psychiatric evaluations and a psychological evaluation which indicated a nexus between her son's behavior and his disability and concluded that her son was not considered dangerous. However, it appears from the record that petitioner's son continued to receive home tutoring for the remainder of the school year.

On June 21, 1999 the Connetquot CSE met to recommend a placement for petitioner's son for the 1999-2000 school year. The CSE recommended that petitioner's son continue to attend the BOCES ALC program at Kings Park High School for the 1999-2000 school year, and petitioner agreed to the recommendation.

By letters dated August 6 and August 11, 1999, Kings Park respectively notified BOCES and Connetquot that, pursuant to its policy regarding the admission of nonresident students, Kings Park would not accept petitioner's son for attendance in the BOCES ALC at the Kings Park High School during the 1999-2000 school year. Thereafter, the Connetquot CSE notified petitioner that it would hold an emergency meeting on August 31, 1999 regarding her son's educational placement. At the meeting, the CSE reiterated its determination that the BOCES ALC at Kings Park High School was the appropriate placement for petitioner's son. However, in view of Kings Park's refusal to admit him, the Connetquot CSE recommended an alternative placement at a BOCES ALC located in the West Babylon Union Free School District.

Petitioner requested an impartial hearing challenging the CSE's recommended alternative placement and sought a determination that her son's pendency placement was the BOCES ALC program at Kings Park. On September 9, 1999 petitioner also initiated an appeal pursuant to Education Law "310 seeking review of Kings Park's refusal to admit her son to its high school. As part of that appeal, petitioner requested that I issue an interim order directing Kings Park to immediately admit her son and declaring the BOCES ALC at Kings Park to be his placement pending all administrative proceedings.

Because petitioner had sought appropriate administrative review by an impartial hearing officer pursuant to Education Law "4404 of the Connetquot CSE's alternative recommendation for her son's placement in the BOCES ALC at West Babylon and because determinations of pendency are within the exclusive jurisdiction of such impartial hearing officers, petitioner's request for interim relief in the appeal before me was denied. However, by letter dated September 23, 1999, my Office of Counsel notified petitioner that, if she prevailed at the impartial hearing and Kings Park continued to refuse her son admission, she could renew her request herein for interim relief.

On October 5, 1999, petitioner and the Board of Education of the Connetquot Central School District ("Connetquot") - parties to the impartial hearing - entered into a settlement agreement whereby Connetquot stipulated that the BOCES ALC at Kings Park was the appropriate placement for petitioner's son for the 1999-2000 school year and also constituted his pendency placement during any administrative proceedings. Petitioner, therefore, agreed to withdraw her request for an impartial hearing. Nevertheless, Kings Park continued to refuse to admit petitioner's son to its high school, and on October 28, 1999, petitioner initiated the second appeal herein with a renewed request for interim relief.

By order dated November 24, 1999, petitioner's request for interim relief was granted and an interim order was issued directing respondents Kings Park and BOCES to admit petitioner's son to the BOCES ALC located at Kings Park High School pending a determination on the merits of the appeal.

Petitioner challenges respondent Kings Park's determination not to admit her son to its high school and its reliance on the district's policy regarding admission of nonresident students. Petitioner claims that such action by respondent Kings Park usurps the authority of the Connetquot CSE to determine an appropriate placement for her son pursuant to Article 89 of the Education Law. She also asserts that Kings Park's refusal to admit her son despite the CSE's recommendation, constitutes a suspension pursuant to Education Law "3214 and, therefore, requires that her son be afforded the due process described in that statute.

Respondents Kings Park and BOCES assert that Kings Park may appropriately refuse admission to any nonresident student based upon its admissions policy relating to nonresident students generally. Respondent Connetquot neither opposes nor supports petitioner's claims, asserting that its CSE made appropriate recommendations for the placement of petitioner's son, both with respect to the original placement recommendation at Kings Park High School and the alternative recommendation at West Babylon.

After careful review of the entire record, I note that the parties are not contesting the educational appropriateness of the Connetquot CSE's recommendation that petitioner's son be placed in the BOCES ALC at Kings Park High School. No one asserts that such placement is educationally inappropriate for petitioner's son. Instead, respondent Kings Park asserts that it is authorized to refuse admission to any nonresident student based upon its general policy relating to the admission of nonresidents adopted pursuant to Education Law "3202(2).

Education Law "3202(2) provides that:

Nonresidents of a district, if otherwise competent, may be admitted into the school or schools of a district or city, upon the consent of the trustees or the board of education, upon terms prescribed by such trustees or board.

Specifically, Kings Park's nonresident student policy provides, in pertinent part:

Nothing in this policy shall constitute a bar to the exclusion of nonresident students considered undesirable by reason of character, ability or previous training, or when such exclusion is otherwise, in the opinion of the board, in the best interests of the community.

Although the appropriateness of the board's policy is not specifically at issue herein, I find that Kings Park's reliance on its general nonresident admission policy to exclude petitioner's son from attendance in the BOCES ALC program at Kings Park High School is inappropriate and misplaced. Petitioner's son was never admitted to the Kings Park Central School District by respondent Kings Park Board of Education pursuant to its nonresident admission policy. Instead, petitioner's son attends Kings Park High School by virtue of the fact that respondent BOCES' ALC program in which he was placed by the Connetquot CSE is located there. The record indicates that respondent BOCES compensates the Kings Park Central School District for use of classroom space at the Kings Park High School for the operation of the BOCES program. Thus, because petitioner's son does not attend Kings Park by virtue of the Kings Park nonresident admission policy, it follows that he may not be discharged pursuant to such policy. Respondent Kings Park's refusal to admit petitioner's son based solely upon its nonresident admission policy is, therefore, improper and petitioner's appeals are sustained.

I note that respondent Kings Park raises an important issue relating to the ability of any school district that is host to a BOCES program to ensure the safety and security of all its students, where the district considers a student placed in the BOCES program to pose a threat to the safety of others. As noted above, such school districts may not rely on nonresident admission policies to exclude students with disabilities appropriately placed in the BOCES program by their respective CSE's. However, a "host" school district is not without recourse to discipline and, if appropriate, suspend such students from attendance at its school. The district may access the procedures set forth in Education Law "3214 and Part 201 of the Regulations of the Commissioner of Education to impose appropriate discipline, including suspension, where a student attending the BOCES program has engaged in misconduct warranting such suspension, and it is determined that the conduct is not a manifestation of the student's disability. Moreover, if the student engages in conduct determined to constitute a danger to the student or others, or such conduct involves drugs or weapons, removal of the student from the current educational setting and placement in an interim alternative education setting may be warranted and appropriate. Thus, the provisions of Article 89 and Part 201 of the Commissioner's Regulations strike an appropriate balance permitting necessary discipline of students with disabilities, while ensuring that such students are not subject to discriminatory removal from programs appropriately recommended by their respective CSE. Respondent Kings Park's failure to proceed in accordance with required due process procedures prior to denying petitioner's son attendance at its high school was fatal in this instance. However, Kings Park's error in this case does not affect its overall authority to pursue disciplinary action against any student attending instruction at the public schools of the district, so long as Kings Park affords such student appropriate due process in doing so, in compliance with applicable State law and regulation.

THE APPEALS ARE SUSTAINED.

IT IS ORDERED that respondents Board of Education of the Kings Park Central School District and Board of Cooperative Educational Services for the Third Supervisory District of Suffolk County continue to admit petitioner's son to the Alternative Learning Center located at the Kings Park High School.

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