Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Springville-Griffith Institute Central School District regarding student discipline.

Decision No. 15,823

(August 20, 2008)

Hodgson Russ LLP, attorneys for respondent, Ryan L. Everhart, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of her son by the Board of Education of the Springville-Griffith Institute Central School District (“respondent”).  The appeal must be sustained in part.

Petitioner’s son, a student with a disability, attended eighth grade at respondent’s middle school during the 2007-2008 school year.  The student’s placement included, interalia, specialized reading, as well as occupational therapy and speech therapy as related services.  On Thursday, January 10, 2008, the middle school principal suspended petitioner’s son for insubordination when he refused to attend after-school detention imposed for repeatedly refusing to participate in his related services.  The principal telephoned petitioner the morning of January 10, 2008 to inform her of the out-of-school suspension being imposed that day and to ask that her son be picked up at school and taken home.  Soon thereafter, the student’s father arrived at the school, declined the principal’s invitation to meet, and took his son home.  The student did not return to school until Thursday, January 17, 2008 and did not receive alternative instruction elsewhere.

On Monday, January 14, 2008, petitioner received a telephone message inquiring about the reason for her son’s absence from school.  That same day, respondent received a letter from petitioner complaining, interalia, that she received no written notice indicating the length of the suspension or arrangements for alternative instruction during the suspension period.  The letter also requested that the principal and assistant principal be reprimanded for their handling of the suspension.  On Tuesday, January 15, 2008, the superintendent received a similar letter from petitioner.

On Wednesday, January 16, 2008, petitioner received a letter from the principal dated January 11, 2008 informing her that her son was suspended for one day only, Thursday, January 10, 2008 and was to return to school on Friday, January 11, 2008.  The letter also described in detail the reason for the suspension.  On Thursday, January 17, 2008, petitioner received a hand-delivered letter from the director of special education confirming that her son was suspended for one day only, January 10, 2008, and should return to school.  The letter also indicated that the principal previously told the student’s father the length of the suspension, that middle school personnel had telephoned petitioner daily on January 11, 14, 15 and 16, 2008 to inquire why her son was absent, and that her son would have an opportunity to take the English Language Arts assessment on a make-up day scheduled for the examination.  By letter dated January 17, 2008, petitioner responded that interalia, she first learned the length of the suspension on January 16, 2008.  By letter dated January 25, 2008, the superintendent informed petitioner that respondent would not grant petitioner’s request to reprimand the principal and assistant principal.  This appeal ensued.

Petitioner contends that she did not receive written notice of her son’s January 10, 2008 suspension until January 16, 2008 and was not informed of the length of the suspension until that date.  Petitioner alleges that the message left on her telephone answering machine by the principal the morning of January 10, 2008 did not mention the length of the suspension and submitted a tape recording with her petition.  Petitioner contends further that her son told her that he believed he was suspended for five days.  Petitioner seeks an order annulling and expunging the suspension from her son’s record and directing respondent to provide make-up educational services for the time the student was absent.

Respondent admits that it did not provide petitioner with written notice of the suspension within 24 hours but the principal contends that he informed the student’s father verbally at least three times on January 10, 2008 that the suspension was limited to one day.  The principal alleges that the tape recording submitted by petitioner of his January 10 message is incomplete and omits information he left about the length of the suspension.  Respondent further argues that petitioner unreasonably asserted for over a week that she was unaware of the duration of the suspension, and kept her son out of school for four additional school days for which he was illegally absent and not entitled to make-up educational services.

In the case of a suspension of five days or less, the suspending authority must provide the pupil with notice of the charged misconduct.  Written notice must be provided to the pupil and the person in parental relation to the pupil to advise them of the reason for the proposed suspension and their right to request an immediate informal conference with the principal at which the pupil or person in parental relation may present the pupil’s version of events and question complaining witnesses (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]; Appeal of R.F., 43 Ed Dept Rep 206, Decision No. 14,972). The notice and opportunity for an informal conference must take place prior to the suspension of the pupil, unless the pupil's presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process, in which case the notice and opportunity for an informal conference must take place as soon after the suspension as is reasonably practicable (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]).

Respondent admits that written notice was not provided prior to the suspension and was not received by petitioner until January 16, 2008.  Consequently, petitioner could not be certain the suspension had concluded until that date and the suspension effectively continued.  Thus, the student’s suspension imposed on January 10, 2008 through January 16, 2008 must be annulled and expunged from his record (Appeal of a Student with a Disability, 47 Ed Dept Rep 19, Decision No. 15,608; Appeal of a Student Suspected of a Hearing Disability, 45 id. 483, Decision No. 15, 388; Appeal of a Student with a Disability, 44 id. 136, Decision No. 15,124).

Education Law §3214(3)(e) provides that where a student has been suspended, “immediate steps” shall be taken for his or her attendance upon instruction.  The term “immediate” does not mean instantaneously, but it does mean that a school district must act promptly (Appeal of D.F.B., 43 Ed Dept Rep 496, Decision No. 15,064; Appeal of Deborah F., 42 id. 178, Decision No. 14,813; Appeal of Benkelman, 34 id. 250, Decision No. 13,299).  Alternative instruction must be substantially equivalent to that received by the student prior to the suspension (Appeal of D.F.B., 43 Ed Dept Rep 496, Decision No. 15,064; Appeal of Deborah F., 42 id. 178, Decision No. 14,813; Appeal of Watts, 23 id. 459, Decision No. 11,282), and equivalency will be determined on a case-by-case basis (Appeal of D.F.B., 43 Ed Dept Rep 496, Decision No. 15,064; Appeal of Camille S., 39 id. 574, Decision No. 14,316).  Previous Commissioner’s decisions have found that two hours of alternative instruction may fulfill a district’s obligation under the Education Law (Appeal of V.E., 43 Ed Dept Rep 244, Decision No. 14,985; Appeal of A.L., Jr., 42 id. 368, Decision No. 14,883; Appeal of Camille S., 39 id. 574, Decision No. 14,316).

Respondent admits that no alternative instruction was provided to petitioner’s son, who, at 14 years old was of compulsory school age.  While the record indicates the student would be provided an opportunity to take the English Language Arts assessment, respondent explains that alternative instruction was not arranged because the student was expected to return to school on January 11, 2008.  Because petitioner’s son is a student with a disability, it is respondent’s Committee on Special Education (“CSE”) that should consider the appropriateness of the student’s current placement and any additional services if the suspension changed the student’s placement as provided in §201.10 of the Commissioner’s regulations.  Respondent is reminded of its legal obligation under Education Laws §§3205(1) and 3214(3)(e) to provide prompt alternative education in the future (Appeal of K.M., 41 Ed Dept Rep 318, Decision No. 14,699; Appeal of D.H., 41 id. 142, Decision No. 14,640).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent’s suspension of petitioner’s son from January 10, 2008 through January 16, 2008 be annulled and expunged from the student’s record.

END OF FILE