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Decision No. 14,975

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



(October 22, 2003)


Dadd and Nelson, attorneys for petitioner, Toni Delmonte, Esq., of counsel


Bouvier, O"Connor, LLP, attorneys for respondent, Chris J. Trapp, Esq., of counsel


MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the Alden Central School District ("respondent") to discipline their son, who was then a senior at respondent"s high school.  The appeal must be dismissed.

On February 18, 2003, the student, who was classified as learning disabled, threw a mixture of hot sauce and Gatorade at a cafeteria monitor.  Apparently other students in the cafeteria paid him to take this action.  Respondent"s administrators contacted local law enforcement and the student was charged with criminal harassment. 

By letter dated February 18, 2003, the high school principal notified petitioners that their son would be suspended for five days from February 19, 2003 through February 25, 2003.  Also by letter dated February 18, 2003, respondent"s superintendent notified petitioners that a hearing was scheduled for February 24, 2003.  He advised petitioners that they were entitled to be represented by counsel, that serious disciplinary action could result and that the student"s records would be available for their review before the hearing. 

At the superintendent"s hearing, the student admitted he was guilty of criminal harassment.  By letter dated February 25, 2003, the superintendent notified petitioners that the student would be "suspended" for the remainder of the year with a number of "stipulations."  He would continue in his Board of Cooperative Educational Services ("BOCES") culinary arts program.  The student would not be allowed to drive himself to and from the program but would be required to use school provided transportation.  The student was also required to meet with a BOCES counselor and to write a three-page paper about the incident.  He was barred from participating in any before-or after-school activities, with the exception of a state-level culinary competition.  The principal was to develop an alternative to physical education class so that the student could meet graduation requirements but he would not be allowed to participate in the June 2003 graduation ceremonies. 

On March 3, 2003 the Committee on Special Education ("CSE") met and determined that there was no nexus between the behavior for which the student was disciplined and his disability.  The CSE noted that the student"s educational program (BOCES) was to be continued, along with a modified physical education program.  The CSE chairperson provided petitioners with written notice of its conclusion by letter dated March 6, 2003.

On March 20, 2003, petitioners appeared before respondent to appeal the imposed discipline.  By letter dated March 21, 2003, respondent"s president notified petitioners that it had upheld the superintendent"s decision.  This appeal ensued and petitioners" request for interim relief was denied on May 5, 2003.

Petitioners contend that the written notice of charges was inadequate, that the student"s anecdotal record was not properly presented to petitioners to prepare a defense, that there was a change in the student"s placement that was not properly considered and that respondent refused to provide necessary documentation that petitioners requested for the instant appeal.  Petitioners also argue that the discipline imposed on the student was excessive.  Petitioners request that I direct respondent to submit the documentation they requested.  Petitioners also request that the student be allowed to attend classes, senior class activities and graduation ceremonies and that his record be expunged.

Respondent contends that the appeal is untimely and that petitioners failed to raise the aforementioned procedural issues at the superintendent"s hearing or in the appeal to respondent.  Respondent maintains that the student"s anecdotal record was properly available for petitioners" review and was only used in determining the student"s penalty.  Respondent asserts that there was no change in the student"s educational program that would warrant overturning the discipline imposed. 

Initially, I must address respondent"s timeliness argument.  An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of unless excused for good cause shown (8 NYCRR "275.16).  Petitioners contend that they received respondent"s written decision on March 25, 2003.  Respondents do not dispute this assertion.  The appeal was commenced on April 24, 2003, within 30 days after receipt of the decision.  Therefore, the appeal is timely.

Because the student has already served the suspension, the appeal is moot except to the extent that petitioners seek expungement of his records. 

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 objectionable conduct (Bd. of Educ. of Monticello C.S.D. v. Commissioner of Educ., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, 293 AD2d 37; Appeal of D.J., 42 Ed Dept Rep __, Decision No. 14,888).  The record indicates that the student admitted to throwing a potentially harmful substance at the face of a lunchroom monitor.   

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of T.N., 42 Ed Dept Rep __, Decision No.  14,836;  Appeal of P.K., 41 id. 421, Decision No. 14,733; Appeal of Orman, 39 id. 811, Decision No. 14,389).  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 (Id.). The student was suspended for five days.  While the discipline imposed following the superintendent"s hearing was called a "suspension" with "stipulations," the student was returned to his regular education program, with the exception of physical education class.  An alternate physical education program was created in order to allow him to graduate on time. 

Furthermore, respondent allowed the student to compete in a culinary competition to qualify for a scholarship.  The student"s driving privileges were revoked and he was prohibited from participating in extracurricular activities and the graduation ceremony.  In their appeal to respondent, petitioners asked only that the student be permitted to participate in senior class activities and the graduation ceremony.  They expressly accepted the other conditions of his suspension.  A review of the student"s anecdotal record, which petitioners were given prior to the superintendent"s hearing, shows that the student had a number of prior disciplinary infractions where his behavior was insubordinate.  Therefore, I do not find the discipline imposed to be excessive.

Finally, petitioners claim that the discipline imposed resulted in an improper change in the student"s IEP.  The record shows that the CSE gave petitioners information on how to seek review of its determination.  Where parents allege a violation of the Individuals with Disabilities Education Act with respect to placement " such as the disciplinary change of placement claimed herein " the parents are required to request an impartial hearing.  Thereafter, if the parents are dissatisfied with the decision of the Impartial Hearing Officer, they may seek further review by the State Review Officer (20 USC "1415; Education Law "4404; 34 CFR "300.507[a]; 8 NYCRR "200.5; Appeal of a Student with a Disability, 42 Ed Dept Rep __, Decision No. 14,753; Appeal of a Student with a Disability, 41 id. 259, Decision No. 14,680).

I have reviewed petitioners" remaining contentions and find them without merit.