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Decision No. 16,170

Appeal of a STUDENT WITH A DISABILITY, by his father, from action of the Board of Education of the Patchogue-Medford Union Free School District regarding student discipline.

Decision No. 16,170

(November 30, 2010)

Guercio & Guercio, LLP, attorneys for respondent, Jeffrey Mongelli, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals two suspensions of his son, a student with a disability (hereinafter “the student”), by the Board of Education of the Patchogue-Medford Union Free School District (“respondent”).  The appeal must be sustained in part.

Suspension beginning September 29, 2009

During the 2009-2010 school year, the student was in 11th grade in respondent’s high school.  During fourth period on Friday, September 25, 2009, the student disrupted his class, used foul language and refused to be escorted out of the class by security and the dean of students.  Petitioner picked up the student prior to the end of the school day.  Later that day, the principal called petitioner to notify him of the incident, indicating that he would not make a disciplinary decision until he spoke with the teacher, which would not occur until Tuesday, September 29, 2009, due to the intervening weekend and holiday.  On September 29, 2009, the principal met with the teacher and determined that the student would be suspended for three days, beginning that day.  When the student was made aware of the suspension he refused to follow the principal’s directions to remain in the building and, instead, walked out of the principal’s office and the building.  The principal then added an additional two days to the suspension.

On September 29, 2009, the principal called petitioner and mailed a notice of suspension by regular mail.  The principal and petitioner met the next day, September 30, 2009, at which time petitioner was not given an opportunity to question complaining witnesses.  After the meeting, however, the principal reduced the suspension from five days to four.  A revised notice of suspension letter was subsequently sent.  Petitioner appealed the suspension to respondent and on November 17, 2009 the appeal was denied.

Suspension beginning October 26, 2009

On October 22, 2009, the student was disruptive in one of his classes and was asked to leave.  On October 23, 2009, the student used foul language during his fourth and fifth period classes and refused to report to the appropriate room as per the administration’s instructions.  A notice of a five-day suspension commencing October 26, 2009 and a superintendent’s hearing was emailed to petitioner on October 23, 2009.  Also, on that day an attempt was made to deliver the notice at his residence, but petitioner refused to accept the notice.  He emailed the principal the following morning that district staff are not allowed on his property.  He also requested an informal conference and an opportunity to interview witnesses.  Petitioner, the principal and the student met on Monday, October 26, 2009 to discuss the incidents without interviewing witnesses, although respondent states that they were made available.  Later that day the principal informed petitioner by phone that the proposed suspension would remain in place.

The student served his five-day suspension and on the fifth day, October 30, 2009, a superintendent’s hearing was held.  By letter dated October 30, 2009 and sent overnight mail, respondent’s superintendent notified petitioner that there was an “electronic malfunction” and there was no recording of the hearing that occurred earlier that day.  The letter stated that the hearing would have to take place again on Monday, November 2, 2009.  Petitioner responded by letter dated October 31, 2009, stating that he deemed the suspension to be over.  A re-hearing was not held, however the student remained suspended through November 6, 2009.  Petitioner appealed the October 26 through October 30, 2009 suspension to respondent and on November 17, 2009 the appeal was denied.  This appeal which addresses both suspensions ensued.

Petitioner requests that his son’s suspensions be expunged, claiming that none of the notices of suspension were sent in a proper manner, resulting in the student being improperly suspended from school without first being given an opportunity for an informal conference.  Petitioner also asserts that respondent failed to provide the services required in the student’s individualized education program (“IEP”).  Petitioner also requests that I find that the manifestation meeting was not conducted in accordance with the Commissioner’s regulations, violating the student’s due process rights and that respondent failed to educate the student when he was suspended an additional four days, from November 2 through November 6, 2009 without a hearing officer’s recommendation or a superintendent’s decision.

Respondent maintains that the appeal is untimely and that I lack jurisdiction over issues regarding the provision of related services pursuant to the student’s IEP.  Respondent also argues that for both suspensions, the student’s presence in the school posed an ongoing threat of disruption to the academic process.  Respondent asserts that petitioner’s reply was submitted late and requests that I do not consider it.

I will first address the procedural issues.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710).  In this case, respondent’s affidavit of service indicates that the answer was served by mail on February 11, 2010.  Thus, petitioner’s reply was due on February 25, 2010.  Petitioner served his reply on March 3, 2010 and argues that it is timely because it should be calculated from a February 16, 2010 letter from respondent’s attorney which pointed out three typographical errors contained in respondent’s answer.  I disagree.  The February 16, 2010 letter did not extend the time for petitioner to submit a reply.  Accordingly, I have not considered the untimely reply.

Respondent asserts that petitioner’s appeal is untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).

Respondent’s letters denying petitioner’s appeals are both dated November 17, 2009.  The record does not indicate when petitioner received the November 17, 2009 letters.  Affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be November 24, 2009.  Thus, petitioner had to commence his appeal on or before December 24, 2009.  Respondent admits that the petition was served on December 22, 2009.  Therefore, I will not dismiss the appeal as untimely.

Turning to the merits, 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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of a F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 154, Decision No. 15,823).  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]).

The purpose of the written notice requirement is to ensure that parents of, or persons in parental relation to, a student suspended for five days or less are made aware of the statutory right provided in Education Law §3214(3)(b)(1) to question the complaining witnesses in the presence of the principal who imposed the suspension in the first instance, and who has authority to terminate or reduce the suspension.  This procedure affords the principal the opportunity to decide whether his or her original decision to suspend was correct or should be modified (Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 79, Decision No. 15,798).

The written notice of a short-term suspension shall be provided by personal delivery, express mail delivery or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension (8 NYCRR §100.2[l][4]).  Commissioner’s decisions have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (seee.g.Appeal of a Student with a Disability, 47 Ed Dept Rep 19, Decision No. 15,608).

Where possible, notification shall also be provided by telephone (8 NYCRR §100.2[1][4]).  Oral communication with a parent regarding a suspension is not, however, a substitute for the required written notification (Appeal of J.Z., 47 Ed Dept Rep 243, Decision No. 15,681; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).

Petitioner contends, and respondent does not dispute, that he did not receive written notice of the suspension which began on September 29 until September 30, 2009.  The notice had been sent regular mail.  The parties met on September 30, 2009 and an affidavit submitted by the school’s principal states that “the parents did not make a request to ask questions of complaining witnesses.”  However, written notice must be provided in a manner which would notify petitioner of his statutory right to question complaining witnesses prior to the informal conference and notice by regular mail is not sufficient (Appeal of B.B., 49 Ed Dept Rep 253, Decision No. 16,017; Appeal of J.Z., 47 id. 243, Decision No. 15,681).

Respondent argues that the student’s presence in the school posed an ongoing threat of disruption to the academic process and, therefore, the notice and opportunity for an informal conference needed to occur as soon after the suspension as was reasonably practicable, but not necessarily before the suspensions.  I disagree.  The record indicates that the student was allowed back in school the next school day after the incident occurred and was allowed to remain in school until the principal determined what, if any, suspension would be imposed.  Additionally, the written notice for the suspension did not state that the student’s presence in the school posed an ongoing threat of disruption to the academic process.  To the contrary, the letter stated that the parent may schedule an immediate informal conference prior to the implementation of the suspension.  Therefore, the principal’s affidavit which claims he believed the student to pose an ongoing threat of disruption to the academic process is belied by the evidence.  Accordingly, I find that petitioner was not given the required prior written notice and the short-term suspension of September 29, through October 2, 2009 must be expunged from the student’s record.

As to the second suspension which began on October 26, 2009, respondent attempted to personally deliver the notice on October 23, 2009, but petitioner refused to accept it.  Petitioner received notice of the proposed suspension by email on October 23, 2009 and scheduled an informal conference with the principal for Monday, October 26, 2009.  Petitioner also received notice by regular mail on October 27, 2009.  The facts regarding the receipt of notice in this suspension differ from those of the first suspension and from previous decisions of the Commissioner in Appeal of B.B., 49 Ed Dept Rep 253, Decision No. 16,017 and Appeal of J.Z., 47 id. 243, Decision No. 15,681.  In this instance, petitioner is estopped from claiming that he did not receive adequate written notice because he refused to accept personal service of the written notice; admits that he received the notice by email; and acted upon the receipt of notice.  Under these unique circumstances, the equities favor respondent and I find that petitioner received adequate written notice prior to the commencement of the short-term suspension.

Petitioner claims that he was unable to question complaining witnesses at the informal conference because the meeting was limited to an hour.  The principal, however, states in his affidavit that he had three witnesses available to speak with petitioner at the conference but petitioner indicated that he did not need to interview the witnesses because they were “going to work this out like men.”  In light of the principal’s affidavit I find that complaining witnesses were available to petitioner during the informal conference.

I note, however, that the informal conference took place mid-day on October 26, 2009, the first day of the student’s suspension.  Respondent argues that the student posed an ongoing threat of disruption to the academic process and it was therefore reasonable for the informal conference to occur on the first day of the student’s suspension.

As opposed to the first suspension, in this instance, the written notice of the suspension specifically stated that the suspension would begin on Monday October 26, 2009 “due to being a continual disruption to the educational process.”  Moreover, although the student was allowed to finish his lunch and attend another class before he was removed from school, it is evident that the principal allowed this as an attempt to avoid any further disruption from the student who was agitated.  Thus, I find that on the facts presented, respondent has established that the student posed an ongoing threat of disruption to the educational process and the informal conference was conducted as soon as reasonably practicable after the second short-term suspension commenced.  I, therefore, decline to annul the second suspension based on the timing of the informal conference.

Petitioner also seeks to have the student’s long-term suspension, which occurred on November 2, 4, 5 and 6, 2009, expunged.  A superintendent’s hearing was held on October 30, 2009.  However, by letter of the same date and sent overnight mail, petitioner was notified the next day that the recording device failed and there was no record of the hearing.  Respondent scheduled a re-hearing for the next school day, Monday, November 2, 2009.  By letter dated October 31, 2009, petitioner notified respondent that it was his position that the suspension was over and his son should be returned to school.  The re-hearing did not occur on November 2, 2009.  The student however, remained in the alternative education program and did not return to school until Monday, November 9, 2009.

Education Law §3214(3)(c)(1) provides in pertinent part:

A record of the hearing shall be maintained, but no stenographic transcript shall be required and a tape recording shall be deemed a satisfactory record. ... An appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it.

In this case, respondent admits that the hearing was not recorded and a re-hearing was never held.  Therefore, neither the superintendent nor respondent had a record to review.  A decision was never rendered by the superintendent that could be appealed to respondent.  Accordingly, in the absence of a record of the hearing, I must grant petitioner’s request for expungement of the additional four days of suspension (Appeal of A.R., 43 Ed Dept Rep 284, Decision No. 14,996; Appeal of Corbett, 12 id. 184, Decision No. 8599).

Petitioner also alleges that respondent failed to conduct the manifestation meeting in accordance with Part 200 of the Commissioner’s regulations.  I note, however, that this issue was properly raised in an impartial hearing brought pursuant to Education Law §4404(1) that has since been resolved and I need not address it in this appeal.

Finally, petitioner’s allegations that respondent did not provide the student his IEP services during the suspensions must be dismissed on jurisdictional grounds.  The proper avenue of redress of such claims is to request an impartial hearing (Appeal of a Student with a Disability, 48 Ed Dept Rep 112, Decision No. 15,808; Appeal of a Student with a Disability, 46 id. 101, Decision No. 15,453).  If a party disagrees with the decision of an impartial hearing officer, they may appeal that decision to the State Review Officer pursuant to Education Law §4404(2).

In light of this disposition, I need not address petitioner’s remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent expunge any reference to the suspensions of September 29 through October 2, 2009 and November 2 through November 6, 2009 from petitioner’s son’s student record in accordance with the terms of this decision.

END OF FILE.