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Decision No. 13,191

Appeal of a CHILD WITH A DISABILITY, by his parent, from action of the Board of Education of the Otselic Valley Central School District regarding student suspension.

Decision No. 13,191

(May 26, 1994)

Matthew R. Fletcher, Esq., attorney for respondent

SHELDON, Acting Commissioner.--Petitioner appeals a decision of the superintendent of the Otselic Valley Central School District, rendered pursuant to a superintendent's hearing, to permanently suspend petitioner's son from school. Petitioner seeks the revocation of her son's suspension. The appeal must be dismissed.

Petitioner has failed to present a clear picture of the facts underlying her appeal. It appears that her son is a 17 year old student at respondent's high school. On or about October 31, 1993, petitioner's son was informed that he lacked sufficient credits to graduate in June 1994. According to petitioner, her son began acting inappropriately only after learning this information. On December 3, 1993, petitioner's son was suspended for three days pending a hearing pursuant to Education Law '3214 because of several alleged instances of rude and disruptive behavior by him on that date. A hearing was held on December 16, 1993 before a hearing officer appointed by respondent's superintendent. During the hearing, petitioner's son admitted that he had engaged in the conduct forming the basis of the charges. The hearing officer reviewed the student's anecdotal record, which indicates approximately 55 incidents of misbehavior by petitioner's son over an eighteen month period. Based on that anecdotal record, the hearing officer recommended that petitioner's son be permanently suspended from school. After reviewing the findings and recommendations of the hearing officer, the superintendent issued a decision on December 23, 1993 to permanently suspend petitioner's son. On February 7, 1994, petitioner commenced this appeal and requested a stay of any further suspension of her son pending a final decision in this matter. Petitioner's request for a stay was denied on February 25, 1994.

Petitioner seeks an order annulling her son's suspension, declaring the penalty excessive and directing respondent to return her son to full-time instruction. I note that subsequent to the filing of this appeal, respondent's committee on special education (CSE) convened and classified petitioner's son as learning disabled/emotionally disturbed. The CSE recommended that the student be placed in an alternative education program with a consultant teacher and a half-day "TEC" program. The CSE also recommended counseling and testing modifications. As a result of the CSE determination, respondent has acknowledged its obligation to place petitioner's son in a special education program, notwithstanding the prior suspension (seeAppeal of a Child with a Handicapping Condition, 31 Ed Dept Rep 423).

Before reviewing the merits of this appeal, I will address several procedural issues. First, respondent contends that the appeal must be dismissed as untimely. An appeal to the Commissioner of Education must be instituted within 30 days of the decision or act complained of. Failure to commence an appeal in a timely manner may be excused by the Commissioner for good cause shown (8 NYCRR 275.16). Petitioner's son was suspended on December 23, 1993, but did not commence this appeal until February 25, 1993, approximately two months later. Petitioner maintains that her delay should be excused because she did not understand the appeal procedure. Except in unusual circumstances, however, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Application of Johnson, 32 Ed Dept Rep 458; Appeal of Pitney Bowes, 31 id. 290; Appeal of Casid, 30 id. 332). I find no unusual circumstances in this case.

The appeal must also be dismissed for failure to exhaust administrative remedies. Respondent correctly notes that Education Law '3214(3)(c) requires petitioner to exhaust her administrative remedies by appealing the superintendent's disciplinary decision to the board of education before commencing an appeal to the Commissioner of Education (Matter of Ahern, 22 Ed Dept Rep 123; Matter of Berkman, 21 id. 590). Because petitioner failed to first appeal to the board of education, the petition must be dismissed.

Finally, respondent's subsequent classification of the student as a pupil with a disability renders petitioner's claims moot. By classifying petitioner's son and recommending a special education program for him, respondent has, in essence, discontinued his suspension (Appeal of a Child with a Handicapping Condition, 31 Ed Dept Rep 423).

However, documents supplied by respondent at the request of my Office of Counsel indicate that as of May 23, 1994, the CSE's recommendation had not been effectuated and that petitioner's son remains out of school. Education Law '4402 and 8 NYCRR 200.5(a)(5) require that a school board implement a special education placement within thirty (30) days after its CSE's recommendation. Based on the date of its CSE meeting, respondent had until May 2, 1994 to offer petitioner's son an appropriate educational placement. Although the petition is dismissed, I remind respondent of its obligation to immediately provide petitioner's son with an appropriate educational placement.

Moreover, respondent's classification of petitioner's son as a child with a disability entitles petitioner and her son to all the protections under Article 89 of the Education Law, including the procedural safeguards established pursuant to Education Law '4404 and 8 NYCRR 200.5. Thus, petitioner has the right to request an impartial hearing and, if necessary, appeal to the State Review Officer, to challenge the recommendation of the CSE, as well as any failure by respondent board to implement a timely placement. During the pendency of such proceedings, and barring a court order to the contrary (see, Honig v. Doe, 484 US 305), the student has the right to continue in the educational program he attended prior to his suspension, unless otherwise agreed to by the parties (8 NYCRR 200.5[2][iii]). Because there may be some dispute regarding the student's "current educational placement", I am referring this case to the Office for Special Education Services for review to assure that the student is able to return to his current educational placement pending any appeal of the CSE's recommendation.