Decision No. 17,109
Appeal of JOHN DOE, by his parent, from action of the Board of Education of the Hicksville Union Free School District regarding student discipline.
Decision No. 17,109
(June 21, 2017)
Law Offices of Suzanne Myron, attorneys for petitioner, Suzanne Myron, Esq., of counsel
Guercio & Guercio, LLP, attorneys for respondent, Barbara P. Aloe, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Hicksville Union Free School District to impose discipline on her son (“John Doe”). The appeal must be sustained in part.
This is one of three appeals challenging student suspensions which arose from the same incident (see Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 17,110 and Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 17,111). At the time of the events relevant to this appeal, John Doe was a 16-year-old student attending respondent's high school. The incident began when John Doe and the two students who are the subjects of the two related appeals become involved in a verbal dispute with three other students in a hallway at the base of a staircase. John Doe asserts that one of the students had been teasing him about the recent death of a friend who was a gang member. The students began shoving each other and a staff member attempted to intervene. A few minutes thereafter, the discussion devolved into a fistfight in the art hallway which eventually involved all six students. Video security camera footage captured by the district and submitted with this appeal portrays a portion of the fistfight. In the footage, John Doe and the two other students who filed related appeals pursued and attacked the three other students.
The assistant principal contacted John Doe’s home, and John Doe’s father and grandmother met with the assistant principal on the same day as the fight. The assistant principal informed John Doe, his father, and John Doe's grandmother that he would impose a suspension which would commence the following day. John Doe's father and grandmother took John Doe home for the remainder of the school day.
The next day, the principal sent a letter to John Doe's home address which imposed a five-day suspension for the fight. On the following day, the superintendent wrote to John Doe’s home and indicated that a superintendent’s hearing would be held in connection with John Doe’s participation in the fight. The superintendent’s letter alleged that John Doe committed the following seven charges of misconduct:
1.Engaged in a physical altercation with another student or students;
2.Engaged in conduct that disrupted the educational process;
3.Endangered the health and safety of others;
4.Engaged in insubordinate conduct and/or failed to follow reasonable directives of district staff;
5.Engaged in concerted activity and/or concerted violent activity;
6.Engaged in concerted and/or gang activity; and
7. Pushed a staff member.
A superintendent's hearing was held. The superintendent, student, petitioner, and John Doe's father attended, as well as an “advisor” who identified himself as a representative of the Economic Opportunity Commission of Nassau County. At the superintendent’s hearing, John Doe admitted his guilt as to specifications one through three and five, and denied that he was guilty as to specifications four, six and seven. The superintendent found John Doe guilty of all seven charges and imposed a one-year suspension. Petitioner’s appeal to respondent was denied. This appeal ensued.
Petitioner argues that the district committed three procedural errors during the disciplinary process and that the penalty imposed was excessive. The three procedural errors alleged by petitioner are that the district improperly suspended her son prior to affording her an opportunity for an informal conference, that the district did not schedule the superintendent’s hearing within the five-day suspension period, and that the board took an inordinate amount of time to resolve her appeal.
Petitioner also argues that the district produced insufficient evidence of guilt as to charge six, which alleged that John Doe engaged in concerted and/or gang activity. Petitioner further contends that charge six was racially motivated and violated John Doe’s civil rights. As for the penalty, petitioner argues that it was excessive and that other participants in the fight received a lesser degree of punishment than John Doe. Petitioner also contends that the district failed to meet its child find obligations under the Individuals with Disabilities Education Act (“IDEA”) and Article 89 of the Education Law. Finally, petitioner avers that John Doe did not receive alternative instruction in a timely manner. For remedies, petitioner seeks reduction of John Doe’s suspension and expungement of the suspension from John Doe’s record.
Respondent argues that petitioner lacks standing to bring this appeal as she is not a legal guardian of John Doe. Relatedly, respondent argues that the appeal must be dismissed for failure to join John Doe’s father, a necessary party to this appeal. Respondent denies petitioner’s allegations and argues that it satisfied its legal obligations in imposing discipline on John Doe. Specifically, respondent argues that John Doe admitted his guilt as to several charges and that the record otherwise supports a finding of guilt on the remaining charges. Respondent further contends that a one-year suspension was an appropriate level of discipline under the circumstances. Respondent further contends that petitioner’s claim relative to the provision of alternate instruction and violation of child find obligations must be dismissed as moot. Respondent additionally argues that petitioner’s IDEA and civil rights claims are outside of the Commissioner’s jurisdiction and that it provided alternative instruction in a timely manner.
First, the Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836). To the extent that petitioner seeks reduction of John Doe’s suspension, John Doe has served his suspension and that portion of this appeal is moot. Petitioner’s claims relating to the timely provision of alternate instruction to John Doe must also be dismissed as moot because John Doe has completed his suspension (Appeal of C.B. and B.R., 50 Ed Dept Rep, Decision No. 16,192; Appeal of C.M., 50 id., Decision No. 16,142). However, petitioner also seeks expungement of the suspension from John Doe’s record, and this claim remains live (Appeal of D.O., 53 Ed Dept Rep, Decision No. 16,543; Appeal of L.L., 51 id., Decision No. 16,334).
Respondent argues that the appeal should be dismissed for failure to join John Doe’s father as a necessary party. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879). Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).
The record in this appeal contains evidence clearly indicating that John Doe’s father supports petitioner’s appeal. It is evident that he, too, seeks reduction and expungement of John Doe’s suspension and therefore his rights would not be adversely affected by a determination in petitioner’s favor (see Appeal of Schillaci, 53 Ed Dept Rep, Decision No. 16,570; Appeal of Riccinto, 46 id. 39, Decision No. 15,435). Therefore, I will not dismiss the appeal on this basis.
Respondent further arguesthat petitioner lacks standing to bring this appeal because an affidavit submitted to respondent for purposes of establishing residency indicates that John Doe’s father will have full responsibility for all aspects of John Doe’s care, including consent regarding educational programs. An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689). Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).
In cases where there is a separation agreement, custody order or divorce decree that confers sole or exclusive custody on one parent and does not contain specific provisions permitting joint decision-making with respect to a child’s education, the non-custodial parent does not retain the right to control educational decisions (Fuentes v. Bd. of Educ. of the City of New York, et al., 12 NY3d 309; Appeal of C.S., 50 Ed Dept Rep, Decision No. 16,163).
In this appeal, petitioner’s affidavit, which appears to be a form affidavit drafted by respondent, indicates that she continues to provide support for her son, but that he cannot reside with her because “[a]t the present time I do not have a stable place to live at.” Respondent has submitted evidence that during this appeal, John Doe left respondent’s district and returned to reside with petitioner outside of the district’s geographic boundaries. There is no evidence in the record that there is a court order or separation agreement which conferred exclusive custody on John Doe’s father; rather, the record suggests that this arrangement was temporary in nature and occasioned by a lack of stable housing.
n such circumstances, I decline to find that petitioner has knowingly relinquished her parental right to bring an appeal pursuant to Education Law §310 on behalf of her son in a disciplinary matter. Such an appeal does not involve consent to an educational program or consent regarding John Doe’s health, medical and safety needs, all of which are specifically addressed in petitioner’s affidavit regarding residency. Instead, this appeal implicates petitioner’s interest in protecting the due process rights of her child. In the absence of specific language in petitioner’s affidavit indicating that she has relinquished her right to bring such an appeal, I decline to dismiss the instant appeal based on petitioner’s lack of standing.
Also, as respondent contends, I am without jurisdiction in an appeal brought pursuant to Education Law §310 to entertain petitioner’s claims that the district did not meet its child find obligations under the IDEA and the Education Law. The IDEA and Education Law (Article 89) provide parents with the right to an impartial hearing regarding a complaint with respect to any matter relating to the identification, evaluation, or educational placement of a child, or the provision of a free appropriate public education (“FAPE”) to such child (20 USC §1415; Education Law §4404). Claims brought to enforce rights under the IDEA must be addressed through the due process provisions of the IDEA and Education Law §4404; such claims may not be addressed in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,375; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232; Appeal of a Student with a Disability, 46 id. 258, Decision No. 15,500; Appeal of a Student with a Disability, 45 id. 327, Decision No. 15,337). Therefore, to the extent that these issues are raised in this appeal, they are dismissed for lack of jurisdiction.
Similarly, an appeal to the Commissioner pursuant to Education Law §310 is not an appropriate forum to adjudicate claims under federal civil rights laws such as the Civil Rights Act of 1964 (Appeal of Cartagena, 43 Ed Dept Rep 267, Decision No. 14,991; Appeal of Finkel, 41 id. 74, Decision No. 14,619).
Turning to the merits of petitioner’s claims, petitioner argues that the district failed to provide her with written notice of the student’s five-day suspension prior to initiation of the suspension. 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[b], 8 NYCRR §100.2[l]; 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. 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[b], 8 NYCRR §100.2[l]).
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]). Commissioner’s decisions have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (see e.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). 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).
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).
Here, the record reflects that petitioner voluntarily took the student home from school on the day of the fight “for safety reasons and ... to obtain medical care.” The record further indicates that the assistant principal met with John Doe as well as his father and grandmother on the day of the incident and informed them that a “[p]rincipal’s [s]uspension would commence the next day.” The record indicates that respondent sent the notice to the parents/guardians of John Doe at his address of record via certified mail the day after the fight – the same day that the student’s suspension commenced. However, previous Commissioner’s decisions have found that certified mail “is no more expeditious than regular mail” and, thus, is functionally identical to regular mail for purposes of analyzing the timeliness of a five-day notice (see Appeal of R.Y., 49 Ed Dept Rep 336, Decision No. 16,046; Appeal of a Student with a Disability, 40 id. 47, Decision No. 14,418). Indeed, in this case, the notice was received at John Doe’s address on the afternoon of the second day of John Doe’s suspension.
As noted above, written notice and the opportunity for an informal conference must take place prior to the suspension, unless the student’s presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process which would allow the notice and opportunity for an informal conference to take place as soon as practicable after the suspension began. In this case, the written notice of the five-day suspension does not explicitly indicate, as it should have, that John Doe’s presence in the school would pose a continuing danger or an ongoing threat of disruption (see e.g. Appeal of L.Z. and M.S., 56 Ed Dept Rep, Decision No. 17,034; Appeal of L.L., 51 id., Decision No. 16,334). While the assistant principal asserts on appeal that John Doe “posed an ongoing and significant threat of disruption,” the principal’s written notice did not so state (Appeal of T.T. and K.T., 52 Ed Dept Rep, Decision No. 16,386; Appeal of G.B. and B.B., 52 id., Decision. No. 16,383).
In this case, respondent argues that the student’s “conduct established that his presence on school grounds posed a continuing danger and/or threat [o]f disruption to the academic process.” In this regard, I note that in its memorandum of law, respondent cites Appeal of L.I., 50 Ed Dept Rep, Decision No. 16,195, for the proposition that “the decision to immediately suspend a student involved in a violent incident [is not] arbitrary and capricious.” While both cases clearly involved violent conduct, Appeal of L.I. is factually distinguishable from the instant appeal. In Appeal of L.I., the principal suspended the student immediately on the day of the physical altercation at issue and provided his mother with a hand-delivered suspension notice on that day informing her that her son would be suspended for three days for “inappropriate physical behavior” and advising her of her right to an informal conference. Petitioner argued that the record did not support a conclusion that the student’s presence posed a threat, but the Commissioner upheld the immediate short-term suspension and found that petitioner was afforded the opportunity for an informal conference in a timely manner under the circumstances.
In the instant appeal, however, John Doe was not suspended immediately, the written notice was mailed on the day the short-term suspension commenced, and respondent’s contention herein that John Doe presented an ongoing threat of disruption warranting an immediate short-term suspension is undercut by the fact that the student’s suspension did not commence until the day after the fight (see e.g. Appeal of J.S. and J.S., 56 Ed Dept Rep, Decision No. 17,032; Appeal of T.R. and M.D., 43 id. 411, Decision No. 15,036). Even if respondent had determined that John Doe posed a continuing risk, it would have been required to provide parental notification as soon after the suspension as was reasonably practicable. As described above, this requirement was not met in the present case (Appeal of R.Y., 49 Ed Dept Rep 336, Decision No. 16,046). Respondent’s failure to comply with Education Law §3214(3)(b)(1) and §100.2(l)(4) of the Commissioner’s regulations requires that the five-day suspension be annulled and expunged from John Doe’s records (see Appeal of E.Z., 56 Ed Dept Rep, Decision No. 17,034; Appeal of T.T. and K.T., 52 id., Decision No. 16,386).
Next, petitioner complains that the superintendent’s hearing was not scheduled within the five-day suspension period. This contention, however, is not supported by the evidence in the record. Education Law §3214(3)(c)(1) provides that no pupil may be suspended in excess of five school days unless the pupil and the person in parental relation are given an opportunity for a fair hearing, upon reasonable notice, at which the pupil has the right to representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil’s behalf (Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897). Thus, at the end of the fifth day of suspension, the student must be readmitted to school unless a hearing sustaining a longer period of suspension is held within the initial five-day suspension period or an adjournment is requested by the student or parent (Appeal of L.T., 50 Ed Dept Rep, Decision No. 16,242 Appeal of Spensieri, 40 id. 51, Decision No. 14,419; Appeal of Bajardi, 33 id. 371, Decision No. 13,082; Matter of Wehner, 22 id. 661, Decision No. 11,110). Where a hearing is timely scheduled, but adjourned at the parent’s request, the five-day requirement is vitiated and the student may remain out of school beyond five days (see Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of Bajardi, 33 id. 371, Decision No. 13,082; Appeal of Wehner, 22 id. 661, Decision No. 11,110).
The superintendent’s hearing was initially scheduled for the last day of John Doe’s five-day suspension but was adjourned at petitioner’s request. The superintendent conducted proceedings on the record on the scheduled date, and petitioner requested a second adjournment at this hearing. The superintendent granted the second adjournment request, and petitioner explicitly consented to continuation of John Doe’s suspension until the hearing convened. Therefore, I find that expungement is unwarranted here since any delay in convening the superintendent’s hearing was attributable to petitioner’s requests for adjournments (see Appeal of L.T., 50 Ed Dept Rep, Decision No. 16,242).
Petitioner also argues that respondent took an unreasonably long time to resolve her appeal to the board of education. The record reflects that petitioner appealed to respondent on the last day of February, and that respondent considered the appeal at its regularly scheduled meeting in April and dismissed the appeal in a letter dated two days after the April meeting. These is no indication in the record that respondent has a rule or policy dictating when a decision resolving an appeal to the board must be rendered. Under these circumstances, I do not find that respondent’s timeline in resolving petitioner’s appeal was unreasonable (see Appeal of L.I., 50 Ed Dept Rep, Decision No. 16,195).
Petitioner further contends that there was insufficient evidence to find John Doe guilty of charge six, which charged him with “engag[ing] in concerted and/or gang activity.” I agree with petitioner that the record does not support a finding that John Doe actually engaged in gang activity. The evidence of gang activity adduced at the hearing consisted of testimony by the assistant principal that John Doe explained to him after the incident that: (1) a friend of his, who was a member of a gang, recently died; (2) the classmate who taunted him displayed a blue bandana; and (3) the blue bandana was affiliated with the classmate’s gang, which he viewed as disrespectful to his friend’s memory. From this, John Doe inferred that the classmate’s display of the blue bandana was a mocking gesture. At the hearing, the superintendent sustained charge six “based upon the testimony by [the assistant principal] regarding [John Doe]’s discussion about being disrespected and a member of a gang and [the] evidence of the flag or bandana on John Doe.”
However, I do not find that this evidence supports a finding that John Doe engaged in gang activity. At the outset, the parties agree that the record does not establish that John Doe is a member of a gang. The superintendent avers that “there never was a finding that [John Doe] was a member of an organized gang,” and John Doe, at the hearing and in this appeal, has denied any such affiliation. The record merely demonstrates that a friend of John Doe’s who was in a gang had died, the classmate displayed a bandana associated with a competing gang, and a fight ensued. Mere knowledge of gangs and gang symbols, or association with individuals who belong to a gang, does not automatically transform acts into “gang activity” (see Appeal of L.L., 48 Ed Dept Rep 197, Decision No. 15,835, Supreme Court, Albany County; Transferred to Appellate Division, Third Department; August 18, 2009; Decision and order granting application to withdraw; September 2, 2010).
However, charge six, by its terms, is not limited to gang activity, since it alleged that John Doe engaged in “concerted and/or gang activity” (emphasis added). John Doe admitted that he was guilty of charge five, which charged him with “engag[ing] in concerted activity” and/or concerted violent activity. Therefore, I have no basis for concluding that John Doe was not guilty of charge six according to the plain language of the charge.
While petitioner makes conclusory allegations that the imposition of charge six was racially motivated in that it involved racial stereotyping, I find no evidence in the record to support such claim. As described above, charge six was based on the testimony of the assistant principal that John Doe told him that the incident was precipitated by another student using a gang symbol and teasing him about the death of a friend who was a gang member. Therefore, respondent had a reasonable and non-discriminatory basis to suspect that John Doe’s actions might be gang-related.
Petitioner further contends that the penalty imposed was excessive. 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, John Doe admitted his guilt to all but three of the charges at the hearing, and only contests charge six on appeal. Thus, John Doe admitted that, among other charges, he fought with another student and endangered the health and safety of others. While John Doe argues that the fight was initiated by the other students, that does not justify or excuse his actions in physically assaulting the other students (see Appeal of D.S. and N.F., 56 Ed Dept Rep, Decision No. 17,026). In fact, the security camera footage shows John Doe and his companions aggressively pursuing and beating the other students after the fistfight started. The fighting was so severe that, according to the record, the school was placed in lockdown after the fight. Moreover, after determining John Doe’s guilt, the superintendent considered an incident in John Doe’s record where, approximately a month before the fight, he approached a student at the beginning of a class period and threatened to physically assault him. Physical violence in public schools should not be tolerated, and the superintendent was well within her discretion to impose a one-year suspension given John Doe’s conduct and anecdotal record (cf. Appeal of T.M., 41 Ed Dept Rep 443, Decision No. 14,740). Therefore, I do not find the penalty imposed to be excessive.
While petitioner argues that other participants in the fight received lesser penalties, the fact that other students involved in the incident may have received different or lesser penalties, or no disciplinary measures at all, does not, of itself, provide a basis for nullifying the discipline imposed on John Doe provided that, as here, the record establishes that he engaged in the misconduct and the penalty imposed is otherwise appropriate (Appeal of R.Y., 49 Ed Dept Rep 336, Decision No. 16,046).
Finally, while petitioner’s claim in this regard is dismissed as moot, the record indicates that petitioner’s claim that the district failed to initiate alternative instruction in a timely manner is without merit. 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 a Student with a Disability, 48 Ed Dept Rep 154, Decision No. 15,823; Appeal of M.K. and S.K., 45 id. 424, Decision No 15,373; Appeal of W.H., 45 id. 96, Decision No. 15,269).
Here, the record shows that John Doe was suspended three days before winter break, and that the district began to deliver Spanish instruction two days after the suspension. After the winter break, the district attempted to promptly commence alternative instruction in John Doe’s remaining subjects. Instruction in some subjects commenced immediately, while instruction in others did not commence until a week or two after the winter break. In an affidavit, the superintendent attributes each delay to petitioner, her family, or events outside of the district’s control; specifically, the Global Studies teacher was unable to contact anyone at John Doe’s home for several days; John Doe’s family “double-booked” certain subjects, which required rescheduling; a teacher was unavailable for Algebra for two weeks; and John Doe failed to attend two Science sessions. Petitioner does not respond to these contentions in her reply. Upon review of the record, I find that the district delivered, or attempted to deliver, alternative instruction in a timely manner.
I have considered petitioner’s remaining arguments and find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that respondent’s short-term suspension of the student for five days between December 21, 2010 to January 4, 2011 be annulled and expunged from his record.
END OF FILE
 Alternatively, respondent argues that petitioner’s IDEA claims must be dismissed for failure to exhaust administrative remedies.
 While John Doe originally contested charges four, six and seven, petitioner confines her challenge to charge six on appeal.
 There was also limited evidence at the hearing that John Doe wore a red sweatband which, the district suggested, could have indicated gang affiliation. However, the district does not pursue this argument on appeal. In any event, John Doe explains in an affidavit that the color of this headband is only indicative of the color of his former high school.