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Decision No. 14,443

Appeal of A STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Syosset Central School District regarding student discipline.

Decision No. 14,443

(August 28, 2000)

Salvatore E. Benisatto, P.C., attorney for petitioner

Vanessa M. Sheehan, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Syosset Central School District ("respondent") regarding the discipline of his son. The appeal must be dismissed.

Petitioner’s son has been identified as a student with a learning disability by respondent’s Committee on Special Education (CSE) and has been diagnosed with attention deficit hyperactivity disorder. Petitioner’s son was attending the tenth grade at Syosset High School on May 21, 1999 when he was charged with endangering the safety and welfare of others. By letter dated May 24, 1999, petitioner was informed that his son was assigned to the Alternative Study Center on May 20, 21, 24, 25 and 26, 1999. A superintendent’s hearing was scheduled for May 27, 1999, but adjourned upon mutual consent of the parties until July 6, 1999. The hearing took place over four dates, ending on September 1, 1999. Respondent produced four student witnesses and the high school principal who testified that petitioner’s son made statements that he would "blow up" and "spare" various students. Petitioner and his son testified along with four other witnesses. On October 22, 1999, the hearing officer determined that petitioner’s son had uttered statements in gym class to the effect that he was going to "spare" certain students and "blow up" or "take out" others. The hearing officer also found that petitioner’s son stated in the hallway outside the gym that he would "spare" a particular student for giving him french fries and, in the hallway on the way to nutrition class, he talked about going on a reign of terror. The hearing officer found that these statements were inappropriate, threatening and potentially dangerous and had the effect of harassing or intimidating other students and endangered the safety and welfare of others. The hearing officer recommended that the matter be referred to the CSE to determine whether this conduct was a manifestation of the student’s disability.

By letter dated October 25, 1999, the superintendent notified petitioner of her acceptance of the hearing officer’s findings and recommendation for an immediate referral of the matter to the CSE for the purpose of making a determination as to whether or not the student’s conduct was a manifestation of his disability. The letter advised petitioner that the hearing officer retained jurisdiction and would be asked to recommend an appropriate penalty after the CSE’s manifestation determination. Petitioner appealed the superintendent’s October 25, 1999 decision to respondent on November 2, 1999.

A meeting of the CSE was scheduled for November 16, 1999. Petitioner’s attorney requested an adjournment on November 10, 1999 and the CSE meeting was rescheduled for February 14, 2000. By letter dated January 11, 2000, petitioner was advised that respondent met in executive session on January 10, 2000 to review the record of the hearing and affirmed the superintendent’s October 25, 1999 findings and recommendation. Petitioner commenced this appeal on February 9, 2000 seeking an order setting aside the hearing officer’s findings, and expunging from his son’s school records the superintendent’s determination and "in-school suspension" of his son to the Alternative Study Center. Petitioner also requested an interim order staying all further proceedings by respondent related to the matter. I denied petitioner’s request for an interim order on February 25, 2000.

Petitioner contends that respondent failed to provide adequate notice of his son’s "in-school suspension" to the Alternative Study Center on May 20, 1999. In addition, petitioner argues that the notice of charges was insufficient on its face and violated his due process rights. Petitioner further contends that respondent’s determination that his son committed the conduct with which he was charged is not based upon competent and substantial evidence.

Respondent contends that the appeal is premature and should be dismissed because no discipline has actually been imposed upon petitioner’s son. Respondent asserts that there is nothing in the student’s permanent file regarding this incident to expunge. Although respondent argues that the Commissioner lacks jurisdiction to review an interim decision, it nevertheless defends its determination as based upon competent and substantial evidence and asserts that petitioner was provided due process.

Petitioner’s appeal is premature and must be dismissed for lack of jurisdiction. Education Law "3214(3)(c) provides, in pertinent part:

...Where a pupil has been suspended in accordance with this section by a superintendent of schools...the superintendent shall personally hear and determine the proceeding or may, in his discretion, designate a hearing officer to conduct the hearing.... 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....

At the time this appeal was filed, only a partial disciplinary hearing had occurred. No findings of fact or recommendation as to the appropriate measure of discipline had been made by the superintendent. This is understandable since the CSE had yet to make a manifestation determination. As a result, this appeal came to me prior to the exhaustion of the administrative remedies 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, 39 Ed Dept Rep 169, Decision No. 14,204).

However, petitioner should not be penalized for commencing this appeal prematurely as a result of the confusion caused by respondent’s actions. By affirming the superintendent’s determination regarding the student’s conduct in advance of the CSE’s determination as to whether or not that conduct resulted from the student’s disability, respondent created the impression that the matter had been conclusively decided and was ripe for appeal. Although the appeal must be dismissed, it is dismissed without prejudice to petitioner in the event that respondent ultimately affirms a decision by the superintendent to suspend petitioner’s son after the CSE has completed its manifestation determination.

On the basis of the foregoing disposition, I need not address the other issues raised by the parties.