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Decision No. 13,448

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Plainview-Old Bethpage Central School District regarding student discipline.

Decision No. 13,448

(July 13, 1995)

Alan J. Azzara, attorney for petitioner

Guercio and Guercio, Esqs., attorneys for respondent, Richard J. Guercio, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner challenges the decision of the Board of Education of the Plainview-Old Bethpage Central School District ("respondent") to suspend her son for one year. The appeal must be dismissed.

On January 6, 1993 petitioner's son, an eleventh grade student at John F. Kennedy High School in respondent's district, was suspended for five days for punching and pushing several students on school grounds. By letter dated January 7, the superintendent informed petitioner that a hearing would be held pursuant to Education Law '3214 to determine whether further disciplinary action was warranted. On January 13, 1993 a hearing was held and, in a decision rendered January 22, 1993, the superintendent of schools found petitioner's son guilty of the conduct charged and imposed a one-year suspension. Because petitioner's son was not of compulsory school age, home instruction was not provided.

Petitioner appealed the superintendent's decision to the board of education on February 3, 1993 and, by letter dated February 10, 1993, the board upheld the suspension. Petitioner initiated this appeal by service of a verified petition on March 10, 1993. Subsequent to the initiation of this appeal, respondent's committee on special education (CSE) evaluated petitioner's son and classified him emotionally disturbed. Petitioner consented to that classification and to the placement subsequently recommended by the CSE.

Petitioner challenges the underlying disciplinary proceeding on several grounds. She alleges that she did not receive adequate notice that her son had a right to counsel at the '3214 hearing. She also claims that witnesses were improperly permitted to remain in the hearing room throughout the hearing, and that she was not notified that her son's anecdotal records would be considered at the hearing. Petitioner also alleges that she requested an adjournment of the hearing so she could obtain evaluations of her son because she suspected him of having a disability related to his behavior. Petitioner claims that the hearing officer improperly denied her request for an adjournment. Finally, petitioner challenges the one-year suspension as excessive.

Respondent contends that the hearing was properly held pursuant to Education Law '3214 and that the penalty imposed was appropriate. Respondent also raises procedural defenses of untimeliness and mootness, which I will first address before reaching the merits.

Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal be instituted within 30 days from the making of the decision or the performance of the act complained of, provided that the Commissioner may excuse a failure to timely commence an appeal for good cause shown. The record in this case indicates that petitioner was formally notified of the board's final determination by letter dated February 10, 1993, and received by petitioner on February 12, 1993. Because petitioner served her petition on respondent on March 10, 1993, I find the appeal timely.

Respondent also contends that the appeal is moot. It is well settled that the Commissioner of Education will determine only matters in actual controversy and will not render a decision on a matter that subsequent events have laid to rest (Appeal of Judy F., 34 Ed Dept Rep 81). The record indicates that, subsequent to the hearing determination, respondent's CSE evaluated petitioner's son and classified him as emotionally disturbed. Petitioner consented to that classification and to the CSE's recommended placement. I note that the student apparently returned to school and subsequently graduated. Petitioner only challenges the length of the suspension imposed and does not seek expungement of her son's records. Since the one-year suspension was not imposed, and petitioner's son was instead appropriately classified and placed by respondent's CSE, I find the appeal moot.

Although petitioner has obtained the relief sought, this appeal raises important issues concerning the proper procedures to follow when disciplining students pursuant to Education Law '3214 who have a disability or are suspected of having one. For the respondent's benefit in future proceedings, whenever a student has a known disability or handicapping condition, or school officials should reasonably suspect the student has a disability, the Education Law '3214 hearing process must be separated into several parts: the student's guilt on the charges must first be established, followed by a determination by the CSE or '504 committee, as appropriate, as to whether the conduct underlying the charges was related to the disability or handicapping condition. If a nexus is found, a referral must be made to the CSE or '504 committee for evaluation in the case of a student with a suspected disability or, if the student is already classified under IDEA or eligible under '504, for possible program modification (Honig v. Doe, 484 U.S. 305; Appeal of a Student with a Disability, 34 Ed Dept Rep ___, Decision No. 13408, dated May 4, 1995). If no nexus is found, yet a disability is indicated or has been identified, discipline may be imposed, but the student's placement cannot be changed without adhering to the due process requirements for changing the placement of a student with a disability or handicapping condition (Honig v. Doe,supra; Metropolitan School District, 969 F2d 485 [7th Cir. 1991]). Where no nexus is found, and no disability is indicated, the student may be suspended as appropriate.

In this instance, the record before me is insufficient to determine whether respondent should have suspected prior to its evaluation and classification of this student in April 1993 that he had a disability. In any event, as noted, petitioner has obtained the relief sought in her petition, so I will not address this issue. Respondent is, however, cautioned to take note of the above-referenced requirements for proper application in future situations.

Finally, I have reviewed petitioner's other procedural objections regarding notification of her son's right to counsel at the '3214 hearing, the presence of witnesses at the hearing and notification regarding review of her son's anecdotal records. I find each is without merit.