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Decision No. 14,753

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

Decision No. 14,753

(July 24, 2002)

Donald R. Gerace, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the suspension of his son by the Board of Education of the City School District of the City of Utica ("respondent"). The appeal must be dismissed.

Petitioner"s son has been identified as a student with a disability by respondent"s Committee on Special Education ("CSE") and has been diagnosed with autism. Petitioner"s son attended sixth grade at Watson Williams Elementary School in respondent"s district during the 2001-2002 school year. By written notice dated October 22, 2001, respondent"s principal notified petitioner that his son was suspended from school for three days. Thereafter, petitioner"s son returned to school and, on November 7, 2001 was suspended for five days. Respondent"s principal provided petitioner written notice of the suspension. On November 13, 2001 a superintendent"s hearing was held pursuant to Education Law "3214(3) and respondent"s CSE convened to determine whether petitioner"s son"s behavior on November 7, 2001 was a manifestation of his disability. The CSE determined that it was, and the disciplinary charges were dismissed.

By letter dated November 17, 2001 petitioner requested an impartial hearing pursuant to Education Law "4404 regarding the October 22 and November 7, 2001 suspensions. Petitioner challenged the calculation of the number of days his son had been suspended, the notice provided, manifestation issues and the provision of alternative instructional services.

On December 12, 2001 petitioner"s son was suspended for five days. Petitioner disputes having received written notice of the suspension. The impartial hearing requested by petitioner was held on January 4, 2002. Neither party has provided a copy of any determination by the impartial hearing officer ("IHO").

Petitioner initiated this appeal on January 2, 2002. Petitioner asserts that respondent"s principal failed to provide him with timely written notice of his son"s suspension on December 12, 2001. Petitioner also claims that the additional five days of suspension imposed on December 12, 2001 constituted an unlawful disciplinary change in placement because of the prior manifestation determination by respondent"s CSE and because the three suspensions during the 2001 fall semester constituted a pattern accumulating to more than 10 school days in a school year.

Respondent asserts first that the student"s principal did provide petitioner with appropriate written notice of the December 12, 2001 suspension from school. Section 100.2(l)(4) of the Commissioner"s regulations provides, in pertinent part:

(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 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 "

Petitioner claims that he did not receive timely written notice of his son"s suspension on December 12 and on December 18, 2001 had to request a copy from respondent. However, the record indicates otherwise. Respondent submits an affidavit of Mark Turnpenny, a special education teacher in respondent"s district, stating that, on December 13, 2001, he personally hand-delivered the written notice of suspension to petitioner"s wife. Petitioner submitted no reply to that affidavit. Therefore, on the record before me I find that, with respect to the December 12, 2001 suspension, respondent provided petitioner with appropriate written notice in accordance with the Commissioner"s regulations.

With respect to petitioner"s allegation that respondent"s December 12, 2001 suspension of his son constituted an impermissible disciplinary change in placement, respondent asserts that petitioner is required to exhaust his administrative remedy under the Individuals with Disabilities Education Act ("IDEA") and Education Law "4404. Respondent is correct. Where a parent alleges a violation of the IDEA with respect to placement " such as the disciplinary change of placement claimed herein " the parent is required to request an impartial hearing. Thereafter, if the parent is dissatisfied with the decision of the IHO, he/she may seek further review by the State Review Officer ("SRO") (20 USC "1415; Education Law "4404; 34 CFR "300.507[a]; 8 NYCRR "200.5; Appeal of a Student with a Disability, 41 Ed Dept Rep ___, Decision No. 14,680; Appeal of a Student Suspected of Having a Disability, 40 id. 75, Decision No. 14,425; Appeal of a Student with a Disability, 39 id. 127, Decision No. 14,192).

I note that petitioner did request an impartial hearing which was held on January 4, 2002, with respect to the October 22 and November 7, 2001 suspensions of his son. Respondent submits an affirmation by its attorney " and asserts in its verified answer " that the IHO also received testimony and exhibits regarding the December 12, 2001 suspension. Petitioner submits no verified reply to contradict respondent"s assertion. Because neither party provided a copy of any subsequent determination of the IHO, I am unable to determine the extent to which the IHO addressed the alleged change of placement claims raised by petitioner herein. In any event, if petitioner is dissatisfied with the determination of the IHO, he may appeal to the SRO. To the extent that the disciplinary change in placement claims asserted by petitioner herein were not raised at the impartial hearing held on January 4,2002, petitioner is required to exhaust his administrative remedy with respect to those claims.