Decision No. 17,383
Appeal of F.A., on behalf of his son M.A., from action of the Board of Education of the East Meadow Union Free School District regarding student Discipline.
Decision No. 17,383
(May 4, 2018)
Hofstra Juvenile Justice Clinic, attorneys for petitioner, Theodor Liebmann, Esq., of counsel
Jaspan Schlesinger LLP, attorneys for respondent, Michael D. Raniere, Esq., of counsel
ELIA, Commissioner.--Petitioner challenges the decision of the Board of Education of the East Meadow Union Free School District (“respondent”) to impose discipline upon his son, M.A. (“the student”). The appeal must be dismissed.
During the 2015-2016 school year, the student attended tenth grade in respondent’s district. On December 16, 2015, the student attended “Regents Skills” class during first and second periods. During the second period, the teacher of the class (the “classroom teacher”) repeatedly asked the student to complete his work. In response, the student told the classroom teacher to “shush” and to “quiet down”; the student also put his finger to his lips to suggest that the classroom teacher stop talking. The classroom teacher told the student that his language and conduct was inappropriate. When the classroom teacher attempted to explain why he should complete his work, the student told her to “shut the f*** up,” called her a “punta,” and threw papers and a pen into the air. Thereafter, the student stood up, grabbed his pants, glanced downward and told the classroom teacher she could “suck [his] d***.” Then, the student grabbed his desk and flipped it over onto the floor. While leaving the classroom, the student called the classroom teacher a “f***ing b****.” Although it is unclear from the record, it appears that the student received a short-term suspension for such conduct and was thereafter excluded from school.
In a letter dated December 16, 2015, the superintendent indicated that the student’s use of inappropriate language toward a teacher and overturning a desk constituted gross insubordination “and/or” disorderly conduct in violation of respondent’s code of conduct. This letter further indicated that respondent would convene a long-term suspension hearing.
The long-term suspension hearing occurred on February 12, 2016. In a written decision dated February 12, 2016, the superintendent found the student guilty of the charged conduct and imposed a suspension through and including January 27, 2017. Petitioner appealed this determination to respondent, which dismissed petitioner’s appeal and upheld the superintendent’s finding of guilt and penalty on March 3, 2016. This appeal ensued. Petitioner’s request for interim relief was denied on April 1, 2016.
Petitioner suggests that the student should have been treated as a student presumed to have a disability in connection with the long-term suspension hearing. Petitioner specifically acknowledges that the student engaged in “inappropriate and disruptive behavior during the school year,” but asserts that his classroom teacher:
[D]id not try additional strategies, conduct a functional behavioral assessment (“FBA”), or develop a behavioral intervention plan (“BIP”), or any other behavior plans to address [the student’s] behavioral issues or make a referral to the CSE.
In this respect, petitioner also alleges that, in response to the student’s intransigence, the classroom teacher did not act in accordance “with the behavioral approach and strategies that were supposed to be used,” and acted in a “reactive instead of proactive” manner.
Petitioner further alleges that the penalty was excessive and, in a single sentence, that respondent “has failed to provide adequate alternative instruction in accordance with NYS Education Law.” Petitioner seeks expungement of “the short and long term suspensions” from the student’s record, an order permitting him to return to school, and an award of an unspecified amount of “compensatory alternative instruction” for the days in which he was suspended from school.
Respondent denies petitioner’s contentions and argues that it appropriately determined the student’s guilt and assessed an appropriate penalty. With respect to petitioner’s argument that the student should have been presumed to have a disability for disciplinary purposes, respondent states that petitioner referred the student to its Committee on Special Education (“CSE”) “prior to the hearing,” and that the CSE did not find the student eligible for special education. Respondent further argues that it imposed an appropriate penalty considering the nature of the student’s conduct and his anecdotal record. Finally, respondent argues that it offered appropriate alternative instruction to the student during his suspension, and that any delays or deficiencies were attributable to petitioner.
Petitioner’s argument that the student should have been presumed to have a disability for disciplinary purposes is without merit. Section 201.5(a) of the Commissioner’s regulations provides, in part:
Where the school district is deemed to have knowledge that a student was a student with a disability before such behavior occurred, such student is a ‘student presumed to have a disability for discipline purposes.’
Section 201.5(b) of the Commissioner’s regulations identifies three circumstances under which a student may be presumed to have a disability:
- the parent of such student has expressed concern in writing to supervisory or administrative personnel of the appropriate educational agency or to a teacher of the student that the student is in need of special education, provided that such expression of concern may be oral if the parent does not know how to write or has a disability that prevents a written statement;
- the parent of the student has requested an evaluation of the student pursuant to section 200.4 or 200.16 of this Title; or
(3) a teacher of the student, or other personnel of the school district, has expressed specific concerns about a pattern of behavior demonstrated by the student, directly to the director of special education of the school district or to other supervisory personnel of the school district.
Here, petitioner has neither alleged nor proven that any of the conditions set forth in 8 NYCRR §201.5(b) were met in this case prior to the December 16, 2015 incident. Although the record reflects that the student had behavioral needs and that the district employed response to intervention strategies, there is no evidence that, for example, a teacher or other school employee expressed specific concerns about a pattern of such directly to the director of special education or to other supervisory personnel of the school district. Petitioner’s argument that the classroom teacher “should” have referred the student for special education does not suffice; 8 NYCRR §201.5 requires actual referral. In any event, respondent asserts that petitioner, in fact, referred the student to the CSE “prior to the hearing,” but that the CSE did not find the student eligible for special education. Accordingly, petitioner has not met his burden of establishing that 8 NYCRR §201.5(a) applies under the circumstances and that the student should be presumed to have a disability for disciplinary purposes (Appeal of a Student Suspected of Having a Disability, 55 Ed Dept Rep, Decision No. 16,912; Appeal of a Student Alleged to Have a Disability, 49 id. 302, Decision No. 16,034). Therefore, respondent’s CSE was not required to consider special factors for the student including conducting an FBA or developing a BIP (8 NYCRR §§200.4[d], 200.22[a], [b]).
Turning next to petitioner’s challenge to the imposed penalty, 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 a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,311; Appeal of B.M., 48 id. 441, Decision No. 15,909). I do not find a suspension of approximately one calendar year to be excessive based upon the serious nature of the student’s conduct as well as his anecdotal record. The student made graphic and threatening remarks to a classroom teacher and imperiled classroom safety when he flipped over his desk. Moreover, the student’s anecdotal record included numerous instances of inappropriate conduct, including the use of crude, vulgar and disrespectful language. Indeed, the anecdotal record revealed three disciplinary incidents alone in the two months preceding the December 14, 2015 incident. Therefore, I find no basis in the record to substitute my judgment for that of respondent.
Finally, petitioner’s claim regarding the provision of alternative instruction services must be dismissed as moot. 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). Here, the student has completed the suspension for which he was provided alternative instruction, thus rendering any dispute as to these services moot (Appeal of C.B. and B.R., 50 Ed Dept Rep, Decision No. 16,192). In any event, petitioner merely makes a conclusory allegation that respondent “failed to provide adequate alternative instruction” but provides no proof in support of this claim. Thus, even if this claim were not moot, petitioner failed to meet his burden of proving that respondent failed to provide adequate alternative instruction. Nevertheless, I remind respondent that alternative instruction must be substantially equivalent to that received by the student prior to the suspension (Appeal of S.U., 57 Ed Dept Rep, Decision No. 17,159; Appeal of R.S., 48 id. 215, Decision No. 15,841), that equivalency is determined on a case-by-case basis (Appeal of D.F.B., 43 Ed Dept Rep 496, Decision No. 15,064; Appeal of A.L., Jr., 42 id. 368, Decision No. 14,883), and that previous Commissioner’s decisions have found that two hours per day 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).
I have considered petitioner’s remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 According to the record, the Regents Skills class is offered to tenth grade students and includes both a classroom and a lab component.
 There is some discrepancy between the classroom teacher’s testimony at the long-term suspension hearing and her contemporary written recollection of the events as to the order in which these comments were spoken. However, the order notwithstanding, the record reflects that the student uttered each of the above-quoted phrases.
 Correspondence from the superintendent, dated December 16, 2015, indicated that the student “shall continue to be suspended pending” a long-term suspension hearing.
 While undefined in the petition, petitioner is likely referring to respondent’s Committee on Special Education.
 While an alleged failure by respondent or its employees to refer the student for special education could be the subject of an impartial due process hearing pursuant to the federal Individuals with Disabilities Education Act and Article 89 of the Education Law, such claims may not be addressed in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 16,956; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232).
 I also note that petitioner seeks an award of compensatory education services, which are generally available only to students who are eligible for special education (Appeal of Hentschel Sr., 56 Ed Dept Rep, Decision No. 16,969; Appeal of T.W., 54 id., Decision No. 16,728; Appeal of V.C., 45 id. 571, Decision No. 15,419).