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Decision No. 14,398

Appeal of A STUDENT WITH A DISABILITY from action of the Board of Education of the Caledonia-Mumford Central School District regarding student suspension.

Decision No. 14,398

(June 27, 2000)

Joyce B. Berkowitz, M.Ed., Esq., attorney for petitioner

Harris, Beach & Wilcox, attorneys for respondent, David W. Oakes, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of his son and requests that the Board of Education of the Caledonia-Mumford Central School District ("respondent") be directed to expunge the suspension from his son's record. The appeal must be sustained.

Petitioner is the father of a student at Caledonia-Mumford Middle School who has been diagnosed with Attention Deficit Disorder and who receives educational services under an accommodation plan consistent with "504 of the Rehabilitation Act of 1973 (29 USC "794; 34 CFR "104). Petitioner’s son was suspended for five days, February 16, 2000 through February 25, 2000, for insubordination and making a threatening comment. It is uncontroverted that on February 16, 2000, petitioner’s son was in a study hall monitored by Donna Wing, a teacher in respondent’s schools. The student moved from his assigned seat and was asked by Mrs. Wing to move back. He refused and made a statement to the effect that he would go on a "killing spree" and kill everyone in the classroom if he had to return to his seat. Mrs. Wing contacted the principal Robert Molisano. The principal came to the study hall, brought petitioner’s son to his office and interviewed him about the incident. Mr. Molisano then informed petitioner’s son that he was suspended for five days and that a superintendent's disciplinary hearing would be scheduled. He telephoned petitioner who arrived at the principal’s office where Mr. Molisano explained the situation to him. Mrs. Wing was not present at that meeting. On February 16, 2000 Mr. Molisano also spoke by telephone with the student’s mother and informed her of the incident and her son's suspension.

On February 17, 2000, a notice of suspension was mailed to petitioner. On February 22, 2000 the student’s mother met with Mr. Molisano regarding the incident. Mrs. Wing was not present at that meeting.

Petitioner requests that the suspension be expunged from his son's record. He contends that the five-day suspension was excessive because his son had only one prior disciplinary incident. He further contends that Mrs. Wing's public admonition violated his son’s "504 plan because she failed to make her comments to him privately and offer him the opportunity to visit his guidance counselor. Petitioner further contends that respondent violated Education Law "3214 by failing to provide written notice of the suspension within 24 hours and because petitioner was not offered an opportunity to question the complaining witness, Mrs. Wing, during his informal conference with the principal regarding the incident.

Respondent asserts that the student’s "504 plan does not apply to study hall, because it is not a classroom and therefore Mrs. Wing was under no obligation to follow the plan. Further, respondent asserts that petitioner was informed of Mrs. Wing's statement, so there was no need for her presence at petitioner’s meeting with the principal and neither petitioner nor his wife requested an opportunity to meet with her. Moreover, respondent asserts that petitioner had timely notice of the suspension and claims that petitioner's wife was verbally instructed that she may appeal to the superintendent. Respondent further asserts that petitioner failed to exhaust his administrative remedies by failing to appeal the principal's suspension decision to the superintendent.

Respondent's argument that the appeal should be dismissed for failure to exhaust administrative remedies is meritless. Education Law "3214 does not require exhaustion of administrative remedies for a suspension of five days or less (Appeal of Kathy and Shawn R., 39 Ed Dept Rep 152 Decision No. 14,199; Appeal of Amara S., 39 id. 90, Decision No. 14,182). Accordingly, I will not dismiss for failure to exhaust administrative remedies.

Education Law "3214(3)(b) provides that, in the case of a suspension by a principal not to exceed five days, the student and her 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):

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 . . . 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)(d) .

The purpose of "100.2(l)(4) is to require that parents of a student suspended for five days or less are made aware of the statutory rights provided in Education Law "3214(3)(b), namely, the opportunity, if they choose, to question the complaining witnesses in the presence of the principal who imposed the suspension in the first place, and who has the authority to terminate or reduce the suspension, thereby allowing the principal to decide whether his or her original decision to suspend was correct or should be modified (Appeal of a Student Suspected of Having a Disability, 39 Ed Dept Rep 169, Decision No. 14,204). It is insufficient to provide merely an opportunity to speak to the principal without the complaining witness present, or an opportunity to speak to the complaining witness without the principal present (Appeal of a Student Suspected of Having a Disability, supra; Appeal of Milano, 37 Ed Dept Rep 472, Decision No.13,908; Appeal of Jones, 35 id. 1, Decision No. 13,444).

In this case, the written notice of the suspension failed to inform petitioner of his right to request an immediate informal conference in which he could question the complaining witness. Furthermore, although petitioner met with the principal on February 16, the record indicates that the principal did not offer petitioner the opportunity to question the complaining witness at that meeting. Nor was petitioner’s wife offered the opportunity to question the complaining witness when she met with the principal on February 22, 2000.

Respondent was required to notify petitioner of his right to question the complaining witness at his meeting with the principal. In fact, respondent admits and the suspension letter further illustrates respondent's failure to inform petitioner or his wife of this right. Respondent claims to have read a statement by the complaining witness and that petitioner's son admitted his misconduct. Respondent contends that this case is different from others cited by petitioner to the extent that respondent did not refuse a specific request to question the complaining witness. They further assert that they would have allowed the witness to be present had one of the student’s parents requested it and assume that neither parent made such a request because their son had already admitted his misconduct.

Unfortunately, because petitioner was never informed of his right to have the complaining witness present, there is no way to know whether such a request would have been honored. It is likely that petitioner remained unaware of his right to question Mrs. Wing during his meeting with the principal. It is this very lack of knowledge of the right to question a complaining witness that the suspension notice is designed to prevent. I am constrained to sustain the appeal based on the omission of this critical opportunity for petitioner, despite the gravity of the comments leading to the suspension. Although it is reasonable and appropriate to take swift action in response to the threats of school violence, respondent is advised that strict adherence to the requirements of Education Law "3214(3) and 8 NYCRR "100.2(l)(4) is necessary to ensure the sustainability of its disciplinary actions.

While I am sustaining the appeal, and need not address petitioner's remaining contentions, I must comment on one additional issue. Respondent's contention that Mrs. Wing's study hall is outside the purview of petitioner’s son’s "504 plan is a matter appropriately addressed by the "504 committee. The record reflects that petitioner’s son had a "504 behavior plan for his disability. It is advisable that the next meeting of the "504 committee should include a discussion of whether the plan is intended to apply during study hall. The committee should be mindful that this incident arose in study hall. Specifically, they should be cognizant that petitioner asserts that his son moved his seat because his neighbor was distracting him and that his son’s disability requires the exclusion of all but minimal environmental distractions to facilitate the completion of his school work. Accordingly, it appears logical for the "504 committee to consider whether the student's "504 plan should include modifications as they relate to his study hall as well as his other classes.

In light of my determination, there is no need to address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent expunge from the student’s records any reference to his suspension on February 16 through February 25, 2000.

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