Appeal of A STUDENT SUSPECTED OF HAVING A DISABILITY, by his parent, from action of the Board of Education of the City School District of the City of Oswego regarding student discipline.

Decision No. 15,061

(June 14, 2004)

 

Michael J. Stanley Law Office, attorneys for respondent, Michael J. Stanley, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Oswego (“respondent”) concerning the suspension of his son. The appeal must be dismissed.

On November 22, 2002, petitioner’s son was suspended for five days for selling marijuana on school grounds. When the superintendent’s disciplinary hearing convened on December 3, 2002, petitioner alleged that his son had a disability and requested that he be referred to the school’s Committee on Special Education (“committee”).[1] Petitioner states that all parties agreed to continue the student’s suspension while the hearing was adjourned pending review by the committee.

On January 6, 2003, respondent’s psychologist evaluated petitioner’s son and determined that he was “not handicapped under [the] IDEA or [§]504.” The committee met on January 17, 2003 and reviewed the evaluation by respondent’s psychologist and documentation from petitioner’s son’s doctor and psychologist. The committee determined that petitioner’s son did not have a disability or need a §504 accommodation plan. Following the committee’s determination, the disciplinary hearing reconvened on January 17, 2003. Petitioner subsequently requested mediation to address the committee’s determination.

By letter dated January 24, 2003, respondent’s superintendent notified petitioner that he concurred with the hearing officer’s recommendation and found petitioner’s son guilty of selling marijuana at Oswego High School. He suspended the student until April 7, 2003. By letter dated January 25, 2003, petitioner appealed the superintendent’s decision to respondent. He noted that he was challenging the committee’s determination and asserted that the disciplinary process should not have continued while the committee’s determination was under review.

On February 4, 2003, respondent reviewed and accepted the January 17, 2003 recommendations of the committee. Also on February 4, 2003, following mediation, petitioner and the district entered a consent agreement, which provided that a §504 plan would be implemented for his son, subject to yearly review.

By letter to the superintendent dated February 4, 2003, petitioner requested that the disciplinary hearing be reopened and that petitioner’s son be placed in an alternative educational setting or allowed to return to school. By letter dated February 6, 2003, the superintendent informed petitioner that respondent would consider his appeal challenging the March 4, 2003 decision to suspend his son.

On February 14, 2003, the committee concluded that there was a connection between petitioner’s son’s alleged disabilities and his sale of marijuana. The committee determined, however, that because the student’s offense involved illegal drugs, his suspension should continue. Because he wanted his son to return to school immediately, petitioner requested an impartial hearing that same day.

By letter dated February 20, 2003, the superintendent notified petitioner that, because both sought the same outcome, his request for due process proceedings and his appeal of the suspension would be before respondent on March 4, 2003. By letter dated February 21, 2003, petitioner challenged this procedure. At its meeting on March 4, 2003, respondent voted to remand to the committee the §504 plan and the manifestation determination. By letter dated March 5, 2003, the superintendent informed petitioner that respondent disapproved the committee’s §504 plan and manifestation determination for lack of documentation, and remanded both issues to the committee. Respondent did not address the student’s suspension. Petitioner commenced this appeal on March 13, 2003.

On March 17, 2003, the committee concluded that the §504 plan should be resubmitted to respondent for approval, but additional documentation and analysis were required to make a manifestation determination. On March 18, 2003, respondent approved the resubmitted §504 plan. Petitioner’s request for interim relief was denied on April 17, 2003.

Petitioner argues that respondent violated his son’s procedural rights. He asks that I issue a determination that his son “is classified” and entitled to a §504 plan, and requests that the suspension be expunged from his son’s record for alleged violations of §504. He further asks that I reprimand the superintendent.

Respondent maintains that the disciplinary proceeding and superintendent’s actions were appropriate and consistent with the law. Respondent further asserts that the district properly conducted the §504 and IDEA proceedings. Respondent emphasizes that the suspension has terminated and petitioner’s son has returned to school.

Petitioner’s appeal must be dismissed for lack of jurisdiction. Petitioner’s claims and demands for relief are grounded in §504. Enforcement of §504 lies with the federal courts, the U.S. Department of Justice and the U.S. Department of Education (Appeal of a Student with a Disability, 39 Ed Dept Rep 752, Decision No. 14,369; Appeal of a Student with a Disability, 36 id. 322, Decision No. 13,736) and not with the Commissioner pursuant to Education Law §310.

In light of this disposition, I need not address the parties remaining contentions.

 

THE APPEAL IS DISMISSED

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[1] The committee functioned under both the Individuals with Disabilities Education Act (“IDEA”) and §504 of the Rehabilitation Act.