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Decision No. 14,552

Appeal of A STUDENT SUSPECTED OF HAVING A DISABILITY, by his parent, from action of the Board of Education of the Roslyn Union Free School District relating to student discipline.


Decision No. 14,552


(March 28, 2001)


Jaspan Schlesinger Hoffman, LLP, attorneys for respondent, Carol A. Melnick, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals his son's suspension from school and requests that the Board of Education of the Roslyn Union Free School District ("respondent") be directed to expunge the suspension from his son's record. The appeal must be sustained.

Petitioner's son is eleven years old and attends the sixth grade in Roslyn Middle School. On November 15, 2000, Petitioner's son was involved in an incident in the school cafeteria when he purchased a beverage from a vending machine after being told that students are not permitted to use the machine during the school day. Petitioner's son allegedly ran around the cafeteria and crawled under tables to avoid school staff before reaching the machine and purchasing a canned milk drink. When Petitioner's son allegedly refused to give the can to a teaching assistant, it was wrested from him, spilling the contents. Instead of returning to his classroom, as instructed, the student ran outside the building. The teaching assistant, along with the school custodian, pursued the student. The principal was notified of the situation and joined the pursuit. The principal ran after Petitioner's son in an attempt to stop him from running onto a service road, and escorted him back inside the school building. That afternoon, the principal met with petitioner to advise him that his son was suspended for five days, to begin the following day, November 16, 2000.

A letter dated November 16, 2000, was sent by overnight mail on November 17, 2000, informing petitioner that his son was suspended from November 16 through November 28, 2000, for failing to comply with the instructions of school personnel, hitting a teaching assistant, and running off school grounds on or near a service road. In addition, during this period, the student was suspended from extracurricular activities, school trips and all school functions. The notice further stated that petitioner may request an informal conference at which he and his son would be afforded an opportunity to ask questions of complaining witnesses.

By letter dated November 23, 2000, petitioner asked the superintendent to expunge the suspension from his son's record. The superintendent denied Petitioner's request on November 30, 2000. Petitioner commenced this appeal on December 11, 2000. I denied Petitioner's request for interim relief on January 12, 2001.

A judicial proceeding was commenced by respondent during this same period. By Order to Show Cause, dated November 21, 2000, respondent made a motion to the New York State Supreme Court, Nassau County, for a preliminary injunction enjoining Petitioner's son from attending school, suspending him from regular instruction and placing him in homebound instruction, pending the completion of a psychiatric/psychological evaluation of the child and a review of the evaluation by the school district"s Committee on Special Education (CSE). On November 28, 2000, a Stipulation was reached by the parties and so ordered by Justice Segal, adjourning the Order to Show Cause until December 12, 2000; continuing the suspension; providing home instruction within 48 hours; and agreeing to evaluate Petitioner's son for admission to the Educational Assistance Corporation ("EAC") program. After a court hearing on January 3 and 4, 2001, a preliminary injunction was granted continuing the suspension and enjoining Petitioner's son from attendance in respondent"s schools until completion of an evaluation and review by the CSE.

Petitioner seeks an order expunging his son's record of any reference to the suspension which he contends was imposed without timely notice and an opportunity to question complaining witnesses. Petitioner also requests that respondent be admonished for violating Education Law "3214 and 8 NYCRR "100.2(l)(4) by failing to provide his son with alternative instruction and for violating its code of conduct. Petitioner contends that school personnel have physically restrained, chased, dragged, hit and harassed his son, and that respondent is using suspension in an attempt to illegally change his son's placement. Petitioner requests an order that respondent cease and desist physical and mental corporal punishment of their son and compelling it to use alternatives to suspension.

Respondent contends that the Commissioner"s jurisdiction in this appeal extends only to the five-day suspension and does not include review of the pending matter in New York State Supreme Court and the January 8, 2001 Court Order. Respondent contends that its written notice of the five-day suspension, dated November 16, 2000, was adequate. Respondent also contends that petitioner was afforded an informal conference with the principal on November 15, 2000 and that he did not inquire on that day whether he could question additional complaining witnesses to the incident. Respondent further asserts that petitioner was afforded another opportunity to question school district staff at a meeting held on December 5, 2000, to review the November 15, 2000 incident. Respondent contends that alternative instruction was provided to Petitioner's son as soon as possible and argues that it was provided within a reasonable time after his suspension.

Initially, I will address the jurisdictional issue. I agree with respondent that it is beyond the Commissioner of Education"s jurisdiction to review the judicial determination issued January 8, 2001 in the matter pending in New York State Supreme Court (Appeal of a Student Suspected of Having a Disability, 38 Ed Dept Rep 641, Decision No. 14,108; Appeal of a Student with a Disability, 35 id. 285, Decision No. 13,543). Therefore, the issue in this appeal is limited to the five-day suspension.

Education Law "3214(3)(b) provides that, in the case of a suspension by a principal not to exceed five days, the student and his parents "shall, on request, be given an opportunity for an informal conference with the principal at which the pupil and/or person in parental relation shall be authorized to present the pupil"s version of the event and to ask questions of the complaining witnesses." Notice of the right to request an informal conference is required under 8 NYCRR "100.2(l)(4):

(4) Parental notice concerning student suspensions. When suspension of a student from attendance for a period of five days or less pursuant to section 3214(3) of the Education Law is proposed, school district officials shall immediately notify the parents or the persons in parental relation in writing that the student may be suspended from school. Written notice shall be provided by personal delivery, express mail delivery, or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension" (Emphasis added).

The purpose of "100.2(l)(4) is to ensure that parents of a student suspended for five days or less are made aware of the statutory right provided in Education Law "3214(3)(b) to question the complaining witnesses in the presence of the principal who imposed the suspension in the first instance, and who has authority to terminate or reduce the suspension. This procedure affords the principal the opportunity to decide whether his original decision to suspend was correct or should be modified. It is insufficient to provide merely an opportunity to speak to the principal without the complaining witnesses present, or an opportunity to speak to the complaining witnesses without the principal present (Appeal of a Student with a Disability, 38 Ed Dept Rep 378, Decision No. 14,059; Appeal of Milano, 37 id. 472, Decision No. 13,908; Appeal of Jones, 35 id. 1, Decision No. 13,444).

In this case, respondent failed to comply with the regulation because the written notice was not provided by a means reasonably calculated to assure receipt within twenty-four hours of the decision to propose suspension. The record reflects that the letter dated November 16, 2000, was mailed November 17 via priority overnight service for delivery November 18, between the second and third days of the suspension. As a consequence, petitioner did not receive notice of his right to an informal conference with the principal at which he could question complaining witnesses until his son's suspension was partially served.

I disagree with respondent"s claim that an informal conference was provided in this case, consistent with "3214(3)(b) and "100.2(l)(4). The November 15, 2000 meeting between the principal and petitioner was insufficient because it occurred prior to receipt of the notice. The December 5, 2000 meeting was insufficient because it occurred after the suspension was served and did not afford the principal the opportunity to modify his decision to impose the suspension.

Accordingly, the suspension of Petitioner's son on November 16, 17, 20, 21 and 27, 2000 must be annulled and expunged from the student's record (Appeal of Milano, supra; Appeal of Pinckney, 37 Ed Dept Rep 284, Decision No. 13,860; Appeal of Jones, supra).

With regard to the issue of alternative instruction, when a student of compulsory school age is suspended pursuant to Education Law "3214, a school district must act reasonably promptly to provide alternative instruction regardless of the length of the suspension (Appeal of Bridges, 34 Ed Dept Rep 232, Decision No. 13,291). It is undisputed that Petitioner's son received no alternative instruction during the entire five-day suspension. The only reference in the record to a date when alternative instruction may have begun is stated in the Stipulation as within forty-eight hours of November 28, 2000, after the suspension was served.

Although I lack jurisdiction to review the court"s continued exclusion of Petitioner's son from respondent"s schools, given his age and potential special education needs, I urge the parties to work together with the court to return this student to an appropriate in-school placement as soon as possible.

I have considered Petitioner's remaining contentions and find them without merit.