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Decision No. 14,258

Appeal of ESTHER F., on behalf of RASHAWN P., from action of the Board of Education of the Hempstead Union Free School District regarding student discipline.

Decision No. 14,258

(December 3, 1999)

Elvira N. Hoffman, Esq., attorney for petitioner

Berkman, Henoch, Peterson & Peddy, P.C., attorneys for respondent, Roslyn Z. Roth, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of her son, Rashawn, from attendance at the schools of the Board of Education of the Hempstead Union Free School District ("respondent"). The appeal must be dismissed.

On October 27, 1998, Rashawn, a ten-year old student at respondent's elementary school, was suspended on the charge of "Assault - threw a book and hit the teacher". A superintendent's hearing was held before a hearing officer on November 4, 1998. By letter dated November 5, 1998, respondent's superintendent sustained the hearing officer's finding that Rashawn had thrown the book and readmitted him to school, effective that day. For some reason, Rashawn was not immediately readmitted to school. Petitioner met with the superintendent on November 9, 1998, after which the superintendent instructed the school principal to reinstate Rashawn effective November 10, 1998. Petitioner appealed Rashawn's suspension to respondent on January 4, 1999. This appeal ensued.

Petitioner contends that the penalty imposed upon Rashawn was excessive, that no alternative instruction was provided during the suspension, and that Rashawn was denied due process at the superintendent's hearing. Petitioner further contends that she never received the superintendent's November 5th letter, and that Rashawn was not readmitted to school until after she met with the superintendent on November 9th. Petitioner alleges that respondent is withholding Rashawn's school records from her and trying to build a case to have Rashawn classified as a special education student. Petitioner asks that I reverse the decision, expunge Rashawn's records and direct respondent to transfer Rashawn to another elementary school or pay his tuition and transportation to a parochial school.

Respondent argues that Rashawn's suspension was not excessive. Respondent requests that I dismiss the appeal and remand the case to the district's Committee on Special Education ("CSE").

At the outset, I must address a procedural issue. When petitioner commenced this appeal, she alleged that she had not received any decision on her appeal to respondent board. Therefore, my Office of Counsel wrote to respondent and requested a copy of its final determination. In a letter dated September 22, 1999, respondent states that it decided not to hear the appeal, because it felt there were no issues left to resolve. In the letter, respondent also argues its position and submits additional exhibits. However, respondent did not request permission to present additional exhibits, nor is there any evidence that respondent served petitioner with these new papers pursuant to the Commissioner's Regulations (8 NYCRR "276.5). Therefore, I will consider only the portions of the letter which respond to my Office of Counsel's inquiry.

Petitioner contends that respondent violated Rashawn's due process rights because the hearing officer, as an employee of the district, was not impartial. However, under Education Law "3214(3)(c), the superintendent is authorized to conduct a hearing or designate a hearing officer to conduct the hearing. Accordingly, the fact that the hearing officer was employed by the school district, without evidence of actual bias, is not a basis for finding that the hearing officer was not impartial (Appeal of Stewart, 34 Ed Dept Rep 193, Decision No. 13,279).

Petitioner also raises the issue of Rashawn's right to counsel. At the outset of the hearing, petitioner was asked by the hearing officer if she wanted counsel, to which petitioner replied in the negative. However, as the hearing progressed, petitioner became disturbed by testimony that she considered unrelated to the central issue of the hearing, and she informed the hearing officer that she thought that she needed an attorney. Petitioner asserts that she requested an attorney several times and that the hearing officer should have stopped the hearing as soon as she made her requests. The appropriate remedy for parents seeking additional time to prepare a defense to disciplinary charges against their child is to request an adjournment of the scheduled hearing (Appeal of Albanese, 26 Ed Dept Rep 327, Decision No. 11,773). Petitioner does not assert that she requested an adjournment and the record shows that she continued to participate in the hearing, speaking on Rashawn's behalf, questioning witnesses and allowing Rashawn to testify. Thus, on the record before me, I cannot conclude that petitioner's due process rights were violated.

A decision to suspend a student from school pursuant to Education Law "3214 must be based on competent and substantial evidence that the student participated in the conduct charged (Board of Education of Monticello Central School District v. Commissioner of Education, 91 NY2d 133; Appeal of Cynthia and Robert W., 37 Ed Dept Rep 437, Decision No. 13,899). Furthermore, the sanction imposed must be proportionate to the severity of the offenses involved (Appeal of Uebel, 38 Ed Dept Rep 375, Decision No. 14,058; Appeal of Alexander, 36 id. 160, Decision No. 13,689). The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner's judgment for that of the board of education (Appeal of Alexander, supra; Appeal of Forestiero, 34 id. 592, Decision No. 13,419).

In this case, it is undisputed that Rashawn threw a book that hit his teacher in the back. Petitioner argues that the penalty imposed is excessive because Rashawn did not intend to hit the teacher; instead, he threw the book at another student who had thrown a pencil at him. Petitioner contends that respondent charged Rashawn with an "assault", yet failed to prove any intent on Rashawn's part, a required element of the criminal charge of assault. However, the criminal law definition is not applicable to student discipline cases pursuant to Education Law "3214 (see, Appeal of Aldith L., 39 Ed Dept Rep ___, Decision No. 14,241). In this case, Rashawn admitted that he threw the book that hit the teacher. Therefore, Rashawn's own statements provide the competent and substantial evidence that he engaged in the objectionable conduct.

Nor do I find the penalty imposed on Rashawn to be excessive. The throwing of objects in the classroom is unacceptable behavior and the fact that Rashawn did not intend to hit the teacher does not diminish the gravity of the offense. Neither does the conduct of the student who allegedly threw a pencil at Rashawn. I find the penalty imposed appropriate given the seriousness of the conduct.

Petitioner contends that Rashawn's anecdotal record was introduced prematurely. It is well settled that a student's anecdotal record may be received in evidence at a disciplinary hearing and considered only after a finding of guilt as to specific charges (Appeal of Osoris, 36 Ed Dept Rep 330; Decision No. 13,739; Appeal of Lewis, 33 id. 520, Decision No. 13,135). In the instant case incidents from Rashawn's anecdotal record were improperly introduced by a witness before the penalty phase. However, the hearing officer acknowledged and addressed the error and disregarded that evidence in making her determination. Further, Rashawn admitted throwing the book that hit the teacher, therefore the finding of guilt is supported by the record even without the anecdotal record. Without any evidence that the hearing officer was improperly influenced by the introduction of the student's anecdotal record prior to her determination of guilt, I find that its introduction constitutes harmless error (Appeal of a Student Suspected of Having a Disability, 35 Ed Dept Rep 492, Decision No. 13,610; Appeal of Norwood, 31 id. 464, Decision No. 12,701).

While I am dismissing this appeal, I am compelled to address respondent's handling of this matter. First, respondent offers no explanation for a gap in the recording of the hearing. Education Law "3214(3)(c) requires that a record of the hearing be maintained. I admonish respondent to fully comply with the statute and ensure that complete records of future hearings are maintained.

Further, the statute provides that an appeal from the hearing will lie to the board of education. I did not dismiss this appeal as premature because respondent's September 22, 1999 letter to Office of Counsel indicates that it declined to hear petitioner's appeal. However, there is no evidence that respondent notified petitioner of that decision. It is respondent's responsibility to review the appeal and notify the petitioner of its decision. It is especially important to communicate clearly in cases such as this, where there is obvious tension between a parent and school district staff. I urge respondent to review its appeal procedures with this point in mind.

I am also concerned about respondent's failure to provide alternative education as required by statute. Education Law "3214(3)(e) provides in part: "Where a pupil has been suspended as insubordinate or disorderly and said pupil is of compulsory attendance age, immediate steps shall be taken for his attendance upon instruction elsewhere or for supervision or detention . . ." (Turner v. Kowalski, 49AD2d 943; Appeal of McMahon, et al., 38 Ed Dept Rep 22, Decision No. 13,976). In this case petitioner contends that Rashawn was not provided with alternative education during his suspension. This statement is not contradicted by respondent. It further appears that the hearing officer's efforts to initiate tutoring occurred almost a full week after the first day of the suspension. This delay in providing alternative instruction is a violation of statute and is unacceptable. Respondent is therefore admonished to comply fully with the dictates of Education Law "3214 regarding the provision of alternative instruction. Further violations of law may subject district officials to proceedings pursuant to Education Law "306.

As for respondent's request that I remand this appeal to its CSE, I remind respondent that its professional staff already has the authority and indeed the responsibility to refer any student that they suspect may have a disability to the district's CSE for evaluation without an order from the Commissioner (8 NYCRR "200.4(a)(1)(ii)). As respondent is no doubt aware, the Individuals with Disabilities Education Act establishes proper procedures to be followed in the event a student's parent(s) refuses to consent to such evaluation (See, 20 USC "1400-1487).

Finally, I note that petitioner's request that I order respondent to turn over her son's records should properly be addressed to the United States Secretary of Education as an alleged violation of the Family Educational Rights and Privacy Act. It appears from the record that petitioner has already contacted the appropriate authorities.