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Decision No. 12,816

APPEAL OF A CHILD WITH A HANDICAPPING CONDITION, by his parents, from action of the Board of Education of the Dover Union Free School District in relation to a social suspension.

Decision No. 12,816

(September 30, 1992)

Mid-Hudson Legal Services, Inc., Esqs., attorneys for petitioners, Rosalee Charpentier, Esq., of counsel

Shaw & Silveira, Esqs., attorneys for respondent, David S. Shaw, Esq., of counsel

SOBOL, Commissioner.--Petitioners, parents of a child with a handicapping condition, appeal from the decision of the Dover Union Free School District (respondent) to suspend their son from activities in response to his academic failure. The appeal must be dismissed.

Petitioners' son, who is seventeen years old was previously classified emotionally disturbed by respondent's committee on special education (CSE). He was declassified in June 1991. Petitioners objected to the declassification, and in response, respondent's CSE chairperson informed petitioners that their son would remain classified and receive resource room services while attending the regular education program in respondent's high school. In the fall of 1991, the student experienced academic difficulties and by November he was failing English and General Earth Science. Consistent with high school rules and regulations, the student was placed on social suspension.

On December 4, 1991, petitioners requested an impartial hearing challenging the social suspension, asserting that, consistent with the student's right to remain in his status quo placement pending all proceedings, the social suspension could not be imposed. On December 20, 1991, petitioners met with respondent's assistant principal and superintendent to discuss the matter. At that meeting, the parties apparently agreed to extend the social suspension until the student was able to catch up with his school work. Thereafter, on January 8, 1992, respondent's CSE convened and determined that the student was capable of following the high school's rules, including its social suspension policy. It was further agreed that the student would remain classified. Apparently, an impartial hearing also was scheduled at that time.

Petitioners contend that their son's academic difficulties are directly related to his emotional problems and learning disabilities. Accordingly, they argue that it was improper for respondent to penalize him socially for his academic failure without proper CSE review. In particular, they argue that respondent had a duty to evaluate their son prior to any change in placement or program to determine if his disability was related to his academic failure. Petitioners also argue that their son has the right to remain in his current educational placement pending due process. Petitioners seek an order directing respondent to discontinue its policy that penalizes special education students for academic failure by suspending them from social activities without first evaluating whether their academic failure is related to their disability. Petitioners allege that respondent's action violates both the Individuals with Disabilities Education Act (IDEA) and '504 of the Rehabilitation Act ('504).

Respondent argues that the matter is moot because the social suspension challenged herein expired on January 2, 1992. Respondent also argues that, to the extent petitioners raise claims under '504 of the Rehabilitation Act, the case should be dismissed for failure to exhaust administrative remedies because the board of education had no opportunity to consider the pupil's '504 disability status prior to this appeal. Furthermore, respondent argues that the Commissioner lacks authority to address petitioners' '504 claims. In addition, respondent argues that the "status quo" provision of the law is only intended to preserve a pupil's basic academic program and does not apply to extracurricular activities.

Although the appeal must be dismissed as moot because the record indicates that the social suspension petitioners complain of has been lifted, this case raises important procedural issues which I will address for the benefit of the parties.

The pendency provisions of Article 89 provide that during the pendency of any proceeding challenging the rights of a child with a handicapping condition to receive a free appropriate public education ("FAPE"), the child must remain in his/her current educational placement unless the parent and local board of education agree otherwise (8 NYCRR '200.4(a)(1)(ix)). Commissioner's regulations define the term "change in program" and "change in placement." A "change in placement" means the transfer of a pupil to or from a public school, BOCES, a Special Act School District, a State Operated or State Supported school or an approved private school (8 NYCRR '200.1(f)). A "change in program" means a change in any one of the components of a student's individualized education program (IEP) including, for example, class size, related services, the amount of time per day services are provided, the provision of specialized equipment and adaptive devices, and testing modifications (8 NYCRR '200.1(e) and '200.4(c)(2)).

Respondent's social suspension policy prohibits a high school student who fails two or more academic subjects from participating in school sponsored activities such as school dances, concerts, sporting events as well as sports or club activities for five weeks. Depending on the student's academic standing at the end of that period, the suspension may be extended to the end of the next marking period. To the extent petitioners argue that the social suspension constitutes a change in placement, there is no evidence that imposition of a social suspension involved any change in the facility the student attends (See 8 NYCRR '200.1(f)). Nor is there any indication that this student's IEP included provisions for his participation in extracurricular activities. Therefore, I am unable to find that, simply by imposing a social suspension, without more, respondent changed either the student's program or placement pending due process.

Although respondent correctly argues that the Commissioner lacks authority to enforce '504 of the Rehabilitation Act, Commissioner's regulations provide an independent basis for addressing petitioners' claims that their son may not be denied access to respondent's extracurricular programs based on his handicapping condition. In particular, similar to provisions of '504 that protect the rights of students with disabilities to access a school's extracurricular programs, Commissioner's regulations also require that boards of education establish administrative practices and procedures to ensure that each student with a handicapping condition has the opportunity to participate in all school district programs, including extracurricular programs and activities, available to other pupils enrolled in the public schools of the district (8 NYCRR '200.2(b)(1).

Although petitioners argue that respondent's application of its social suspension discriminates against their son based on his handicapping condition, they fail to produce evidence to support their claim. Assuming that this student is receiving an appropriate education in the high school, his classification as a student with a handicapping condition, alone, does not provide a basis for excusing him from an academic policy applied equally to his non-handicapped peers. However, to determine whether this student's academic failure is symptomatic of respondent's failure to provide him with an appropriate education, as petitioners allege, this student's academic failure should have immediately triggered a referral back to the CSE to consider whether a change in program or placement was necessary. If the CSE determined that the pupil's failure triggering the social suspension was due to an inappropriate placement, petitioners correctly argue that excluding their son from extracurricular activities would have been improper and respondent's obligation would have been to simply change his program.

In any case, if petitioners disagreed with respondent's recommendation regarding their son's IEP, they had the right to request a meeting of the CSE to review his placement and challenge its recommendation by requesting an impartial hearing.

Although petitioners allege that their son's academic failure was due to his handicapping condition, they present no evidence to support their claim, nor is the record clear that they sought a hearing to challenge either his program or placement as opposed to the district's authority to impose the social suspension. Notably, it appears that by January 2, 1992, without any change in this student's program or placement, the social suspension was lifted because the student had submitted all of his outstanding assignments. In any case, as long as the district was meeting its obligation to provide the student with an appropriate education, the fact that the student is classified does not constitute a basis to exempt him from a policy that imposes basic academic standards on all students, handicapped or not, as a precondition for involvement in extracurricular activities. Since I find no evidence establishing that this student's academic difficulties were predicated on the district's failure to provide FAPE, or that respondent's policy was either inherently discriminatory or applied to this student in a discriminatory manner, the petition would have been dismissed on the merits as well.