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Decision No. 14,047

Appeal of a Student Suspected of Having a Disability, by his parents, from action of the Board of Education of the City School District of the City of Johnstown concerning student discipline.

Decision No. 14,047

(December 15, 1998)

Russell P. Martin, Esq., attorney for petitioners

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, John J. Toy, Jr., Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the suspension of their son from the City School District of the City of Johnstown. The appeal must be dismissed.

On October 29, 1996, petitioners' son, an eleventh grade student, was involved in an incident in which a teacher observed him passing an item to another student as he left study hall after being called to the office. A pipe bowl was confiscated from the other student and petitioners' son was suspended for five days commencing October 31, 1996 through November 6, 1996 for possession of drug paraphernalia. Petitioners were notified of the suspension by letter dated October 30, 1996. By letter dated October 31, 1996 the superintendent notified petitioners that a hearing would be held on November 6, 1996 to determine whether their son would be suspended beyond five days.

The hearing was commenced on November 6, 1996 at which time petitioners' son admitted to possessing the pipe bowl and his mother testified that her son had been diagnosed with Attention Deficit Disorder (ADD) and was classified as a student with a disability. The superintendent immediately recessed the hearing to allow the district's Committee on Special Education (CSE) to determine whether the student's disability was related to his conduct. Petitioners' son was returned to regular classes pending the CSE determination. After the CSE chairperson confirmed that the student had never been referred for evaluation or classified as having a disability, the hearing was reconvened on November 30, 1996.

At the hearing, petitioners' attorney submitted a letter dated November 14, 1996 from a physician diagnosing petitioners' son as having ADD for which he had previously taken medication. The letter further indicated that petitioners' son was taken off the medication to begin the 1996-1997 school year, but was subsequently forced to resume its use because without it "he got into a great deal of difficulty." At the conclusion of the hearing on November 20, 1996, the superintendent found petitioners' son guilty of the charge and imposed the penalty of suspension through April 14, 1997. Following the hearing, he informed petitioners' attorney that his decision could be appealed to respondent board of education at its meeting scheduled for December 4, 1996 upon timely submission of a written request to do so.

On December 3, 1996, the superintendent received a letter from petitioners' attorney confirming that they had not yet received a written decision from him but still wished to be placed on the agenda for the board's December 4, 1996 meeting to appeal the suspension. Respondent's attorney contacted petitioners' attorney on December 3, 1996 to inform him that the superintendent would hold his written decision in abeyance and provide the student with home tutoring until the student could be evaluated by the CSE. Petitioners' attorney indicated that petitioners had withdrawn their son from respondent's schools and enrolled him in the Mayfield Central School District. That same day, the Mayfield school district contacted respondent to obtain the student's records.

The suspension was not appealed at respondent's December 4, 1996 meeting and on December 6, 1996, the superintendent referred petitioners' son to the district's CSE. In a telephone conversation on December 9, 1996, petitioners' attorney indicated that petitioners would not consent to an evaluation of their son. By letters dated December 13 and 16, 1996, respondent's attorney informed petitioners' attorney that a written suspension decision would be issued because petitioners refused to consent to the evaluation of their son. Petitioners commenced this appeal to the Commissioner on December 13, 1996 and the superintendent issued a written decision on December 23, 1996 suspending petitioners' son through April 14, 1997.

Petitioners seek a determination that their son resides in respondent's district and is entitled to attend its schools without payment of tuition. Petitioners also request reimbursement for the cost of alternative education obtained at the Mayfield Central School District and expungement of the suspension from their son's records. Respondent contends that there is no justiciable controversy and that the petition is not ripe for review because petitioners' son has not been denied admission to its schools due to residency. Respondent also contends, interalia, that this appeal must be dismissed as premature because Education Law "3214 requires an appeal to the board of education prior to an appeal to the Commissioner of Education. Petitioners did not submit a reply to respondent's affirmative defenses.

The Commissioner of Education will not entertain a challenge to a suspension in excess of five days prior to the exhaustion of the administrative remedy of appeal to the board of education (Education Law "3214[3][c]; Appeal of Benkelman, 34 Ed Dept Rep 250; Matter of Holfelmer, 14 id. 151; Matter of Walker, 11 id. 301). Accordingly, to the extent petitioners appeal from their son's suspension, including the related hearing, the appeal is dismissed without prejudice, pending an appeal to respondent (Appeal of Benkleman, supra). I have considered petitioners' remaining contentions and find them without merit.