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Decision No. 13,435

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Hicksville Union Free School District regarding a suspension from school.

Decision No. 13,435

(June 27, 1995)

Wolin & Wolin, Esqs., attorneys for petitioner, Alan E. Wolin, Esq., of counsel

Guercio & Guercio, Esqs., attorneys for respondent, Ralph C. DeMarco, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals her son's suspension from school by the Board of Education of the Hicksville Union Free School District ("respondent"). The appeal must be dismissed.

On August 13, 1993, petitioner requested that respondent provide her son with special bus transportation to accommodate a medical condition described as an "obsessive-compulsive disorder." The request was granted. The student was subsequently hospitalized for this disorder from November 4, 1993 through December 6, 1993. The student's discharge papers indicated that he could return to school and continue his original course of study. On December 14, 1993, petitioner consented to the release of her son's medical records to respondent, including records from his attending psychiatrist, Dr. Karpf. On February 28, 1994, petitioner advised respondent's guidance counselor that her son was being cared for by a physician other than Dr. Karpf. On March 1, 1994, Dr. Karpf informed respondent's guidance counselor that she considered the student to be suicidal and homicidal, requiring day-care treatment. On March 2, 1994, respondent's guidance counselor referred the student to respondent's support team ("SST"). On March 9, 1994, petitioner executed three more authorizations for the release of medical documentation regarding her son.

On March 11, 1994, the student allegedly disrupted a physical education class. As a result, petitioner was contacted and her son was sent home for the remainder of the day. On March 15, 1994, the student was allegedly found in the girls' locker room. On March 15, 1994 respondent was also informed by the student's doctor that his medication was being changed to treat "tourette's syndrome". On March 16, 1994, petitioner's son allegedly harassed a female student by repeatedly changing his seat during a class period to move closer to her and asking for her phone number and a date. When asked by a substitute teacher to change his seat, petitioner's son purportedly became enraged, overturned furniture and threatened to harm his mother and the female student. The female student stated that petitioner's son had previously followed her home on March 14, persistently asking her to date him and requesting her phone number. The student further stated that she refused to give petitioner's son her phone number and told him that she did not wish to date him.

On March 16, the assistant principal, Leslie Mann, and the dean of students, Raymond McDonough, investigated these incidents. After Mr. Mann and Mr. McDonough spoke with petitioner's son regarding the allegations, he admitted to the conduct described. Mr. McDonough then contacted petitioner, and informed her of the incidents and her son's admissions. In a letter dated March 16, 1994, principal Hogan suspended petitioner's son for five days for entering the girls' locker room without permission and harassing a female student, threatening her with physical harm and throwing furniture around a room.

On March 17, 1994, Mr. McDonough spoke with petitioner on the telephone about her son's suspension. On March 17, 1994, respondent's guidance office arranged for the student's classroom teachers to forward all assignments to the high school office so that petitioner could provide them to her son. On March 18, 1994, the SST issued a summary of the impact of the incidents giving rise to the student's suspension on its planned intervention concerning his educational placement and planning. On March 18, petitioner spoke with the parents of the girl whom her son allegedly harassed. On March 20, 1994 principal Hogan advised petitioner of her rights regarding placement and classification of her son. On March 23, 1994, assistant principal Mann met with the student and he signed a statement admitting and apologizing for behavior that constituted sexual harassment. On April 8, 1994 petitioner sought to have respondent expunge her son's suspension from his student record. On December 23, 1994, respondent advised petitioner that her request had been denied. This appeal followed.

Petitioner asserts that the district failed to afford her son due process prior to his suspension. Petitioner further contends that respondent knew about her son's disability and failed to assess whether his alleged misbehavior, which precipitated his suspension, was related to it. Petitioner seeks an order rescinding her son's suspension and expunging from his record any reference to the suspension or admission of sexual harassment.

Respondent contends that petitioner and her son were afforded due process. Additionally, respondent asserts that even if the student's behavior was related to a disability, it was within its rights to impose a short-term suspension without determining whether his behavior was related to his disability. Further, it argues that respondent did not coerce petitioner's son into signing a statement admitting he sexually harassed a female student.

The procedures governing the suspension of any student or the imposition of discipline must be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of Allert, 32 Ed Dept Rep 242; Appeal of Forster, 31 id. 443). Education Law '3214(3)(d) establishes the procedure which a school district must follow to suspend a student for no more than five days. It provides in pertinent part:

...the pupil and the person in parental relation to him shall, on request, be given an opportunity for an informal conference with the principal at which the person in parental relation shall be authorized to ask questions of complaining witnesses.

Additionally, 8 NYCRR 100.2(l)(4) requires notice of the suspension to the parents or person in parental relation to the student. That notice must include an explanation of the parents' right to request an informal conference with the principal under Education Law '3214(3)(d).

The record indicates that petitioner was notified of the suspension by telephone and by letter. The notification included her right to request an informal conference. The record further reflects that petitioner met with the principal and had an opportunity to question complaining witnesses, including students and faculty. Therefore, respondent's actions met the standards of fairness established by Education Law '3214 and 8 NYCRR 100.2(l).

Petitioner contends that no suspension could have occurred without a prior evaluation and determination by respondent's committee on special education ("CSE"). Petitioner stresses that respondent knew of her son's disability in August 1993 when it authorized special bus transportation for him.

When a student is determined to have a disability, he or she is entitled to an assessment by a multidisciplinary team to recommend accommodations and modifications necessary to meet the "educational needs of the child as adequately as the needs of nondisabled children are met" (34 CFR 104.33[b] and 104.35). These modifications cannot be further changed without prior evaluation (34 CFR 104.35(a)). In August 1993, petitioner notified respondent of her son's disability. Although respondent did grant an accommodation to petitioner's son for special transportation due to his disability, it failed to refer him to a multidisciplinary team. Such referral was necessary to determine whether other accommodations were required. The record reflects that there was a referral to the CSE in March 1994 when one of the student's doctors notified respondent of his potential for harming himself or others and when he allegedly began misbehaving. Since petitioner's son has now been evaluated by a multidisciplinary team, any claims by petitioner, including the timeliness of the referral, should be made at an impartial hearing held in accordance with procedures adopted by the school district, as required by 29 USC '794 and 34 CFR Part 104.

Moreover, respondent's delay in evaluating the student does not invalidate an otherwise valid short-term suspension where there is no evidence of successive suspensions totalling more than 10 days. Because the suspension in this case was for less than ten days, respondent was under no obligation to assess the nexus between the student's disability and alleged misbehavior prior to imposing the suspension (Honig v. Doe and Smith, 484 U.S. 305). Moreover, a short-term suspension may be used by a board of education to temporarily remove a child with a handicapping condition who poses an immediate threat to the safety of others, even where the behavior relates to the child's handicapping condition (Appeal of Cellini, 30 Ed Dept Rep 473). An isolated short-term suspension does not constitute a significant change in educational placement sufficient to trigger the due process protections of the Individuals with Disabilities Act (Appeal of Cellini, supra; Appeal of a Child with a Handicapping Condition, 28 Ed Dept Rep 342). Accordingly, I find respondent's suspension of petitioner's son proper.

I have reviewed petitioner's remaining contentions and find them without merit.