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Decision No. 14,251

Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by his parent, from action of the Board of Education of the Liberty Central School District, regarding student suspension.

Decision No. 14,251

(November 24, 1999)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Frank Miller Esq., of counsel

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

Petitioner's son enrolled in the Liberty Central School District in September 1998 when he was fifteen years old. He began the 1998-1999 school year in the tenth grade at Liberty Central High School. Between September 14, 1998 and January 4, 1999, he was absent from school forty-nine days and received at least twenty-five behavior referrals for a variety of infractions, including truancy, leaving classes and school property without prior permission, using inappropriate language toward other students and staff, disrupting classes, smoking on school property and other acts of general insubordination.

As a consequence of these behavioral infractions, petitioner's son was disciplined repeatedly, receiving detention, in-school suspensions and out-of-school suspensions. Out-of-school five-day suspensions were imposed from October 26-30, November 4-6 and again beginning on December 16, 1998.

A superintendent's hearing was scheduled on December 17, 1998 to determine whether a suspension beyond five days should be imposed on the charge of "violating the student handbook by chronic violations of school rules." The hearing was ultimately held on January 4, 1999 and petitioner's son was found guilty of the charge.

By letter dated January 5, 1999, petitioner received notice that her son's "out-of-school suspension will be continued." The letter also informed her that three steps would be taken regarding her son prior to January 15, 1999. First, her son would be tested by the school psychologist. The second step was to identify programs to meet her son's educational needs. Thirdly, a referral was made to respondent's committee on special education (CSE) to consider her son's case.

The school psychologist's February 5, 1999 report found petitioner's son to have a "borderline" 78 I.Q. and a behavior pattern consistent with that of the typical student with Attention Deficit Hyperactivity Disorder, although "more problematic." Nevertheless, the psychologist advised the CSE that petitioner's son did not qualify for special education services. The CSE met on February 12, 1999 and found petitioner's son ineligible for special education services based on the psychologist's report. The CSE report noted that petitioner's son previously received special education services in the Monticello Central School District but conducted no further evaluation of the student. The CSE recommended an Alternative Program operated by the Sullivan County Board of Cooperative Educational Services (BOCES) but the BOCES program did not accept petitioner's son.

From January 8 through March 16, 1999, petitioner's son was assigned to respondent's After-School Program but did not attend. On March 16, 1999, petitioner's son was placed on home instruction but respondent did not provide tutoring services due to scheduling problems.

Petitioner commenced this appeal on March 19, 1999, seeking an order ending the "indefinite suspension" of her son and overturning the Sullivan County BOCES decision not to accept her son in its Alternative Program. On April 2, 1999, I issued an interim order directing respondent to admit petitioner's son to the Liberty Central High School and to convene its CSE to conduct a comprehensive evaluation of the student. On April 6, my Office of Counsel notified petitioner that the portion of her petition pertaining to the Sullivan County BOCES could not be entertained as a result of her failure to comply with the personal service requirement of "275.9 of the Commissioner's regulations.

On April 23, 1999 respondent's April 20, 1999 request for reconsideration of the April 2, 1999 interim order was denied. The CSE met on April 23, 1999 and determined that petitioner's son did not have a disability that adversely affects his educational performance. Petitioner was provided notice of that determination on April 26, 1999.

Petitioner contends that respondent suspended her son indefinitely and has not provided him with an appropriate educational placement. Respondent denies suspending petitioner's son indefinitely and contends, interalia, that petitioner failed to exhaust her administrative remedies, by not appealing the superintendent's decision to the board of education before commencing this appeal to the Commissioner of Education.

The appeal must be dismissed. Education Law "3214(c) provides, in pertinent part:

…The hearing officer shall make findings of fact and recommendations as to the appropriate measure of discipline to the superintendent. The report of the hearing officer shall be advisory only, and the superintendent may accept all or any part thereof. An appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it. The board may adopt in whole or in part the decision of the superintendent of schools…

The record indicates that petitioner did not appeal the superintendent's decision to respondent. As a result, this appeal comes to me prior to the exhaustion of the administrative remedy specifically provided by statute, which must be pursued before an appeal to the Commissioner may be commenced (Appeal of a Student Suspected of Having a Disability, 38 Ed Dept Rep 332, Decision No. 14,047; Appeal of Evette G., 37 id. 192, Decision No. 13,839; Appeal of Doty, 35 id. 134, Decision No. 13,490).

To the extent petitioner challenges the appropriateness of the educational placement provided to her son and disagrees with the recommendation of the CSE, she may request an impartial hearing pursuant to Education Law "4404(1) and 8 NYCRR "200.5(d). If either party is dissatisfied with the hearing officer's decision, it may seek review by the State Review Officer pursuant to Education Law "4404(2).