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Decision No. 16,233

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Three Village Central School District regarding student discipline.

Decision No. 16,233

(June 3, 2011)

Lamb & Barnosky, LLP, attorneys for respondent, Eugene R. Barnosky and Mara N. Harvey, Esqs., of counsel

KING, Jr., Acting Commissioner.--Petitioner appeals the suspension of her son by the Board of Education of the Three Village Central School District (“respondent”).  The appeal must be dismissed.

During the 2009-2010 school year, petitioner’s son, a student with a disability, attended kindergarten at Nassakeag Elementary School.  On October 5, 2009, he grabbed a pencil, leapt across a table and jabbed the pencil into and/or around another student’s eye.  The teacher notified the school principal and further advised her that, since the beginning of the school year, petitioner’s son had numerous behavioral incidents in her classroom.

On October 6, 2009, petitioner met with the principal, the school social worker and the teacher to discuss the incident and was notified that her son would be suspended for four days from October 6 through October 9, 2009.  On this same date, the principal also sent petitioner written notification of the suspension.

By letter to the interim superintendent of schools (“superintendent”) dated October 9, 2009, petitioner objected to the suspension, but did not specifically state that she was appealing the suspension decision.  Subsequently, when petitioner received no response to this letter, she called and scheduled a meeting with the superintendent.  On November 5, 2009, the superintendent and the assistant superintendent for educational and pupil services met with petitioner.  According to petitioner, at this meeting she reiterated her intention to appeal her son’s suspension and discussed the issues that she had raised in her October 9, 2009 letter.

By letter dated December 6, 2009, petitioner sought a written response to her appeal.  By letter dated December 7, 2009, the superintendent informed petitioner, interalia, that the student’s record had been modified by the removal of the word “intentional” with regard to his actions and that, other than the removal of this word, the “record will remain as originally worded.”  The letter did not specifically state that the superintendent had denied petitioner’s appeal.

By letter dated December 11, 2009, petitioner requested that, if the superintendent intended to uphold her son’s suspension, he provide her with a written decision to that effect.  On that same date, petitioner appealed the suspension to respondent.  By letter dated January 13, 2010, respondent dismissed petitioner’s appeal.  This appeal ensued.

Petitioner maintains that her son’s behavior resulted from his disability and, therefore, he should not have been disciplined for it.  With regard to penalty, petitioner argues that the four day suspension from school was excessive and inconsistent with respondent’s code of conduct, which she asserts requires imposition of progressive discipline.  Petitioner also alleges that respondent failed to consider extenuating circumstances, including her son’s disability, age and lack of any prior disciplinary record.  She further argues that he had only three weeks to adjust to kindergarten at the time of the incident and that he suffered severe deprivation in Ethiopia during the first 18 months of his life prior to being adopted by her.  Petitioner alleges that she should have been advised earlier in the school year about his behavioral issues and that the behavior might result in discipline.  Finally, petitioner contends that the superintendent did not timely respond to her appeal.  Petitioner seeks expungement of the suspension from her son’s record.

Respondent contends that the decision to suspend petitioner’s son is supported by the record.  Respondent further maintains that the penalty was appropriate given the severity of the offense.  Respondent asserts that, although petitioner’s son is a student with a disability, in this instance the suspension is permissible.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioner does not challenge the determination that her son engaged in the charged conduct.  However, she argues that the behavior was related to his disability, precluding any disciplinary action.  A principal may suspend a student with a disability for a period not to exceed five consecutive school days to the same extent that a nondisabled student would be subject to suspension for the same behavior except if the removal would result in a change of placement, which is not alleged here (34 C.F.R. §300.530[b][1]; 8 NYCRR §201.7[b],[d]; Appeal of a Student with a Disability, 48 Ed Dept Rep 432, Decision No. 15,906).

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of F.W., 48 id. 399, Decision No. 15,897).  Here, petitoner’s son jabbed another student in and/or around the eye with a pencil.  The student’s eye could have been seriously and permanently injured.  Moreover, prior to this incident, petitioner’s son was involved in numerous behavioral incidents that included progressively aggressive behavior towards both his fellow students and school staff.  School staff employed a variety of behavioral interventions in response.  The district’s code of conduct provides that such interventions are used prior to imposing more severe disciplinary consequences.  The code of conduct further provides that students who have violated the code may be subject to other consequences, including suspension, based on the severity of the infraction.  Although listed in progressive order, there is nothing precluding the imposition of any one of the consequences at any time, depending on the severity of the offense.  Based on the record before me, I cannot conclude that a four day suspension is so excessive as to warrant the substitution of my judgment for that of respondent (Appeal of P.M., 44 Ed Dept Rep 437, Decision No. 15,223; Appeal of Esther F., 39 id. 357, Decision No. 14,258).

Finally, petitioner argues that the superintendent did not timely decide her appeal from the principal’s decision to suspend her son, “as prescribed by Education Law §3214.”  Although the superintendent appears to characterize his December 7, 2009 letter modifying the wording of the student’s record as the decision denying petitioner’s appeal, it was unclear as to why, if such was intended, the denial was not clearly stated.  Nevertheless, petitioner has failed to set forth a time period mandated by statute for issuing such an appeal decision and, indeed, there is none.  In any event, petitioner also appealed to respondent and obtained a written determination in a timely fashion.  Although petitioner does not prevail in this claim, I urge respondent to review its administrative appeal procedures for suspensions of five days or less and ensure clarity of communications with parents to avoid future confusion and contentiousness.

Accordingly, I find no basis to order the expungement of the student’s record.

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

THE APPEAL IS DISMISSED.

END OF FILE.