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Decision No. 15,236

Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by her parent, from action of the Board of Education of the Smithtown Central School District regarding student discipline.

Decision No. 15,236

(June 16, 2005)

Law Offices of Peter G. Albert, attorneys for respondent, Peter G. Albert, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of his daughter by the Board of Education of the Smithtown Central School District ("respondent"). The appeal must be sustained in part.

Petitioner's daughter attended tenth grade at Smithtown High School during the 2003-2004 school year. On May 17, 2004, she and a classmate allegedly poured an oral laxative into their teacher's drink without the teacher's knowledge or consent. When petitioner picked up his daughter from school on May 17, 2004, he was provided written notice from the principal that his daughter would be suspended for five days, from May 18 through May 24, 2004 and provided daily alternative instruction after school hours. The notice advised petitioner of his right to request an immediate informal conference with the principal and that the matter was being referred to the superintendent to determine whether further disciplinary action would be taken.

By letter dated May 18, 2004, the superintendent advised petitioner that a hearing would be held on May 24, 2004 to determine whether his daughter engaged in conduct that warranted a suspension for more than five days. Petitioner's daughter was represented by counsel at the hearing. After reading the charge, the hearing officer adjourned the hearing pending an expedited meeting of respondent's Committee on Special Education ("CSE") and stated that the student would be provided home instruction during the interim. The student returned to school on June 3, 2004 and was assigned to in-school suspension.

The CSE met on June 9, 2004 and concluded that petitioner's daughter did not have a disability and was not eligible for special education. On June 10, 2004, petitioner's attorney requested an impartial hearing to challenge the CSE's determination. On June 21, 2004, the impartial hearing officer advised the parties and their counsel in writing that the impartial hearing would be delayed for 30 days at the request of petitioner's attorney because petitioner was not ready to go forward at that time. This appeal ensued. Petitioner's request for interim relief was denied on June 18, 2004.

Petitioner contends that respondent had knowledge prior to the May 17, 2004 incident that his daughter was a student with a disability entitled to the rights and protections of the Individuals with Disabilities Education Act ("IDEA") and should have provided him with notice of procedural safeguards due to students presumed to have a disability for discipline purposes. Petitioner contends that respondent failed to conduct a manifestation determination before suspending his daughter for more than ten consecutive days. Petitioner alleges that respondent provided inadequate alternative instruction and deprived his daughter of after-school review opportunities available to other students to prepare for final and Regents examinations. He requests that the suspension be annulled and her record expunged.

Respondent contends that it provided petitioner and his daughter with the rights and procedures required by Education Law �3214. Respondent admits that it was advised on March 9, 2003 that the student showed signs and symptoms of attention deficit hyperactivity disorder (" ADHD"), but contends that petitioner cancelled a May 9, 2003 CSE meeting to consider her IDEA eligibility. Respondent contends that the petition should be dismissed for failure to exhaust administrative remedies under the IDEA and �504 of the Rehabilitation Act (" �504"). Respondent further contends that petitioner failed to appeal its determinations of May 21, 2003 and May 5, 2004 that his daughter does not have a disability as defined by �504. Respondent maintains that the Commissioner lacks jurisdiction to determine an appeal raising claims pursuant to the IDEA and �504.

Education Law �3214(3)(b)(l) 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 pupil and/or person in parental relation shall be authorized to present the pupil's version of the event and to ask questions of the complaining witnesses." Notice of the right to request an informal conference, as required under �100.2(1)(4) of the Commissioner's regulations, provides in pertinent part:

When suspension of a student from attendance for a period of five days or less pursuant to section 3214(3) of the Education Law is proposed, school district officials shall immediately notify the parents ... in writing that the student may be suspended from school.... Such notice shall provide a description of the incident(s) for which suspension is proposed and shall inform the parents ... of their right to request an immediate informal conference with the principal in accordance with the provisions of Education Law, section 3214(3)(b)....

The purpose of �100.2(1)(4) is to require that 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, and who has the authority to terminate or reduce the suspension, thereby allowing the principal to decide whether the original decision to suspend was correct or should be modified (Appeal of T.R. and M.D. , 43 Ed Dept Rep 411, Decision No. 15,036; Appeal of a Student with a Disability, 43 id. 372, Decision No. 15,021).

In this case, although respondent's letter of May 17, 2004 advised petitioner of his right to request an immediate informal conference with the principal, it did not inform him of his right to question the complaining witnesses. The suspension must therefore be annulled and expunged from the student's record (Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145; Appeal of a Student with a Disability, 40 id. 47, Decision No. 14,418; Appeal of a Student with a Disability, 38 id. 378, Decision No. 14,059).

With respect to petitioner's allegation that his daughter is eligible for and entitled to special education services, the record indicates that an impartial hearing officer (IHO) was appointed to decide that issue. The IHO's determination is not reviewable in an appeal to the Commissioner (Education Law �4404 and 8 NYCRR Part 279).

In light of this disposition, I need not address the parties' remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent's five-day suspension of petitioner's daughter be annulled and expunged from her record.

END OF FILE