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Decision No. 14,818

Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Bath Central School District and Marion Tunney, Superintendent, regarding student discipline.

Decision No. 14,818

(November 6, 2002)

Southern Tier Legal Services, attorneys for petitioners, Amanda C. L. Vig, Esq., of counsel

John K. McCarthy, Esq., attorney for respondent

MILLS, Commissioner.--Petitioners appeal a determination by the Board of Education of the Bath Central School District ("respondent") to permanently suspend their son from Haverling High School ("Haverling") for alleged misconduct. The appeal must be sustained.

At the time this appeal arose, the student was enrolled in the ninth grade at Haverling and was classified as learning disabled. As a result of an incident on November 29, 2001, the student was suspended for the remainder of the first semester after a superintendent"s hearing. The suspension commenced on December 28, 2001, and expired on January 28, 2002. A manifestation hearing determined that the behavior was not a manifestation of the student"s disability.

In her December 28, 2001 letter advising petitioners of her determination and the student"s suspension, the superintendent stated that, before the student could return to Haverling, he and his parents must agree to a contract of conduct ("contract"). After meeting with the superintendent, petitioners and the student executed a contract on January 24, 2002. The contract noted the suspension from December 28, 2001 to January 28, 2002, and provided for the student"s return to Haverling on a probationary basis, subject to a number of assurances regarding his behavior. The contract stated that the student"s attendance at Haverling was at the complete discretion of the district, based upon the student"s compliance with the assurances. If the student failed to comply with any of the assurances, the superintendent in her discretion, on written notice to the student and his parents, could decide that the student was no longer permitted to attend Haverling. If the student contested the determination that he had failed to comply with the assurances, he could request a conference with the superintendent, and the superintendent would advise the student in writing whether, as a result of the conference, he could continue attending Haverling.

On April 1, 2002, the student was suspended for five days for attending school under the influence of alcohol. The principal"s notice of suspension dated April 1, 2002 stated that the student was suspended from April 2 to April 8, and that his return to school was pending a superintendent"s hearing. By letter dated April 2, 2002, the superintendent advised petitioners that she had determined that the student had failed to comply with his responsibilities under the contract of conduct, and that as a result he was no longer permitted to attend Haverling. There is a dispute as to whether petitioners requested a conference with the superintendent based on the contract or asked for a superintendent"s hearing, but the record reflects that the district declined to provide a superintendent"s hearing based on the language in the contract. This appeal ensued. Petitioners" request for interim relief was granted on May 20, 2002.

Petitioners assert that respondent has violated the student"s due process rights under Education Law "3214, the Individuals with Disabilities Education Act ("IDEA"), and the Commissioner"s regulations by failing to hold a superintendent"s hearing based on the alleged misbehavior on April 1, 2002, and by failing to keep him in his present educational placement pending the superintendent"s hearing and a manifestation determination. They contend that the contract of conduct cannot be enforced if it violates the student"s due process rights, and seek an order mandating a superintendent"s hearing and manifestation determination, and a declaration that the contract is unlawful and is contrary to educational policy. Respondent contends that the contract of conduct was a permissible attempt to allow the student to continue with his education rather than be suspended from school, and that the parents did not request a conference with the superintendent to discuss the April 1, 2002 actions or the superintendent"s April 2, 2002 determination.

I have previously addressed the use of a contract of conduct. In Appeal of Spensieri, 40 Ed Dept Rep 51, Decision No. 14,419, I upheld the use of a contract of conduct for a student who had been suspended in January 2000 for the remainder of the 1999-2000 school year after a superintendent"s hearing. Pursuant to the contract of conduct, the student was readmitted to the classroom on January 31, 2000 on probation upon certain conditions. The contract stayed imposition of the remainder of the suspension, upon the understanding that any violation of school rules would result in a reimposition of the underlying suspension without the necessity of an additional hearing.

I found that the use of such a contract of conduct did not violate Education Law "3214 or the student"s due process rights, because the student had already had a valid superintendent"s hearing and the suspension had been imposed in compliance with the due process requirements of "3214 (Appeal of Spensieri, supra). The contract of conduct merely provided a way for the student to ameliorate the suspension by agreeing to certain conditions in return for probationary reinstatement into the classroom. None of the conditions in the contract imposed any special rules or regulations on the student that were not similarly imposed on his fellow students (Appeal of Spensieri, supra; Appeal of Bowen, 35 Ed Dept Rep 136, Decision No. 13,491; Appeal of Homick, 34 id. 150, Decision No. 13,265).

The instant contract, however, violates Education Law "3214 and the student"s due process rights because it imposes the penalty of permanent suspension for the April 2002 conduct without benefit of a superintendent"s hearing. The one-month suspension penalty imposed on December 28, 2001 expired only four days after petitioners and the student signed the contract on January 24, 2002, and the incident prompting the permanent suspension occurred more than two months later, on April 1, 2002. As petitioners correctly argue, the April permanent suspension was new punishment for new misbehavior, which was imposed without due process.

I also find that the contract violated the student"s due process rights under the IDEA, Education Law Article 89 and Part 201 of the Commissioner"s Regulations. A disciplinary sanction that removes a child from the classroom for more than ten days constitutes a disciplinary change in the child"s placement (34 CFR "300.519; 8 NYCRR "201.2[e]). A proposed disciplinary change of placement triggers the requirement to provide a manifestation determination (34 CFR "300.523; 8 NYCRR "201.4) to determine whether there is any relationship between the student"s disability and the behavior that is the subject of the disciplinary action. If the behavior is found to be a manifestation of the student"s disability, then the student may not be suspended or removed from his or her current placement, except in circumstances that are not relevant here. If, however, the behavior is not a manifestation of the student"s disability, then the student may be suspended or removed to the same extent as a nondisabled student, except that the student with a disability must be provided with a free appropriate public education during the period of suspension or removal (34 CFR "300.520[a][1][ii]; Education Law "3214[3][g][3][vi]; 8 NYCRR "201.10[d]).

In the instant appeal, the student had previously been suspended for 30 days in December 2001, but received the mandated manifestation determination. However, following the incident on April 1, 2002, the student was summarily permanently suspended from school without any of the required due process protections afforded by law. There was no referral to the committee on special education, and no manifestation determination or any of the other mandated procedural rights. To the extent that the contract purported to authorize such actions, the contract is invalid.

The contract also sought to impose a requirement that was not similarly imposed on other students " to waive the student"s due process rights under federal and state law as a condition of attending public school. I have previously recognized that, under certain conditions, a parent may waive a student"s due process rights under "3214 (Appeal of A Student Suspected of Having A Disability, 41 Ed Dept Rep ___, Decision No. 14,722; Appeal of J.G., 39 id. 393, Decision No. 14,270; Appeals of McMahon and Mosely, et al., 38 id. 22, Decision No. 13,976). For such a waiver to be valid, however, it must be "voluntary, knowing and intelligent." The district must provide the student and parents with a written document clearly and concisely stating all of the rights to be waived, as well as the consequences of waiving such rights, to effectuate a waiver of rights under "3214 (Appeal of J.G., supra; Appeals of McMahon and Mosely, et al., supra).

The contract of conduct in this case falls far short of that standard. Although there is a written document, there is no notice provided to the parent that, in executing the contract, they would be giving up their rights under "3214 to notice of charges, a hearing with the right to question witnesses and present evidence, appeal to the board of education and judicial review. The contract therefore is not a valid waiver of the student"s rights under "3214, and the decision to permanently suspend the student without affording him the due process required by "3214 cannot be sustained.

In view of the foregoing determination, I need not address the other issues raised by the parties.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent"s permanent suspension determination dated April 2, 2002 be annulled and expunged from the student"s record.

IT IS FURTHER ORDERED that to the extent respondent has a policy and procedure in place for negotiating contracts of conduct with students and parents, respondent shall modify the policy and procedure to comply with Education Law "3214 and with this decision, within 30 days of the date of this decision.

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