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Decision No. 15,122

 

Appeal of A.S. and S.K., on behalf of their son S.S., from action of the Board of Education of the Valley Stream Central High School District regarding student discipline.

 

Decision No. 15,122

 

(October 7, 2004)

 

Guercio & Guercio, attorneys for respondent, John P. Sheahan, Esq., of counsel

 

MILLS, Commissioner.--Petitioners appeal the suspension of their son, S.S., by the Board of Education of the Valley Stream Central High School District (�respondent�).  The appeal must be dismissed.

By separate letters dated December 19, 2003, petitioners and S.S. were notified of a hearing scheduled for January 8, 2004 on charges against S.S. for disorderly conduct and endangering the health, safety and welfare of others by possessing a knife on school property on December 18, 2003.  At the time of the incident, S.S. was a 17 year-old senior in respondent�s high school.

After two adjournments requested by petitioners, a hearing was scheduled for February 9, 2004 before respondent�s assistant superintendent as the designated hearing officer.  Petitioners, S.S., their attorney, respondent�s attorney, and the high school principal appeared on that date.  After the hearing officer explained the hearing process and informed petitioners and S.S. of their rights, including their right to appeal the outcome of the hearing, respondent�s attorney informed the hearing officer that the parties had agreed to a stipulation, the terms of which were then read into the hearing record.  The parties agreed that S.S. would plead no contest to the charges and serve a five-month suspension until the end of the 2003-2004 school year, and that the matter would be resolved without further administrative proceedings by the district or petitioners.  S.S. would also be entitled to attend an alternative program and summer school to complete his courses, with a limited number of allowable absences.  If S.S. failed to graduate by the end of the summer, he would voluntarily withdraw from school and enroll in an alternative program, such as a GED program.  In addition, petitioners agreed to special education testing, to be provided by the district.

The hearing officer recommended the settlement to the superintendent.  By letter to S.S. dated February 10, 2004, the superintendent accepted the settlement.  In his letter, the superintendent advised S.S. that he could �appeal the decision of the superintendent�s hearing to the Board of Education in writing within 30 days.�

By letter dated March 8, 2004, petitioners appealed to the superintendent, requesting that he reconsider the terms of the settlement.  After meeting with petitioners on March 11, the superintendent denied their appeal on March 12.  By letter dated March 18, 2004, petitioners requested that the superintendent provide transportation for S.S. to his classes, change his school hours, or change the location of his classes.  The superintendent denied this request on March 24.  This appeal ensued.  Petitioners� request for interim relief was denied on June 16, 2004.

Petitioners deny that S.S. brought a knife to school and claim that S.S. only admitted he had a knife under pressure from the principal because the principal had him arrested and told him he would go to jail.  They admit that S.S. cut classes over a period of two years but assert he was never referred for counseling or academic intervention services.  Petitioners claim that respondent is forcing S.S. out of school and into a GED program.  They also contend that the alternative education S.S. received is inadequate.  They request that their late petition be excused because respondent did not advise them of their right to appeal to the Commissioner.  Petitioners seek to have S.S. readmitted as a regular high school student and the charges removed from his record.

Respondent asserts that the appeal must be dismissed because petitioners failed to exhaust their administrative remedies and, in the alternative, waived their rights to further administrative proceedings.  It also claims that the petition is untimely and fails to state a claim upon which relief may be granted.  Respondent further contends that the settlement is valid and there is no reason to invalidate it.  Finally, respondent maintains that it is not obligated to provide S.S. with alternative education because he is over the compulsory education age.

Education Law �3214(3)(c)(1) provides that an appeal to the board of education lies from a superintendent�s disciplinary determination.  Accordingly, the decision of a superintendent to suspend a student following a hearing must be appealed to the board of education prior to initiating an appeal to the Commissioner of Education (Appeal of D.C., 41 Ed Dept Rep 190, Decision No. 14,661; Appeal of P.R. and C.R., 41 id. 48, Decision No. 14,611).  Both the hearing officer and the superintendent�s letter of February 10 advised petitioners of their right to appeal to the board of education, yet the record is devoid of any evidence that petitioners did so.  Accordingly, petitioners� claims must be dismissed for failure to exhaust administrative remedies.

Although the appeal is dismissed on procedural grounds, I am compelled to comment on the stipulation entered into at the beginning of the suspension hearing on February 9.  Since no hearing was held, the stipulation essentially amounted to a waiver of petitioners� rights under Education Law �3214.  I have previously recognized that, under certain conditions, parents may waive a student�s due process rights under �3214 (Appeal of a Student with a Disability, 42 Ed Dept Rep 192, Decision No. 14,818; Appeal of a Student Suspected of Having a Disability, 41 id. 390, 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 (emphasis added) (Appeal of a Student with a Disability, supra; Appeal of J.G., supra; Appeals of McMahon and Mosely, et al., supra).

The stipulation in this case does not meet this standard.  Although petitioners� counsel orally agreed to the stipulation at the hearing, the only written document in the record is the February 10, 2004 letter from the superintendent to S.S., setting forth the terms of the stipulation as articulated.  There is no evidence that petitioners signed this document or otherwise consented in writing.  Among other things, the stipulation provided that, if S.S. failed to graduate by the end of summer school, he would voluntarily withdraw from school and enroll in an alternative program, a consequence essentially equivalent to a permanent suspension or expulsion.  Significantly, the stipulation fails to articulate this consequence or explain that petitioners were waiving S.S.�s right to attend school until such time as he either earned a high school diploma or turned 21 years of age (see, Education Law �3202[1]).  The fact that petitioners seek their son�s return to school suggests that they may not have fully understood the terms of the stipulation and its consequences.

In addition, a permanent suspension is an extreme penalty that is generally educationally unsound except under extraordinary circumstances, such as where the student exhibits �an alarming disregard for the safety of others� and where it is necessary to safeguard the well-being of other students (Appeal of L.T., 44 Ed Dept Rep ___, Decision No. 15,107; Appeal of Coleman, 41 id. 101, Decision No. 14,628).

In the event petitioners pursue their administrative remedies, as is their right, by appealing directly to respondent, respondent should consider the issues outlined above.  Any final determination by respondent can be appealed by petitioners to the Commissioner pursuant to Education Law �310.

 

THE APPEAL IS DISMISSED.