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Decision No. 16,064

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

Decision No. 16,064

(May 10, 2010)

Peter D. Hoffman, P.C., attorneys for petitioner, Peter D. Hoffman, Esq., of counsel

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent, James P. Drohan, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the suspension of her daughter by the Board of Education of the Brewster Central School District (“respondent”).  The appeal must be dismissed.

During the 2008-2009 school year, petitioner’s daughter was 12 years old and attended sixth grade at respondent’s middle school.  On May 4, 2009, petitioner requested an evaluation to determine if her daughter was a student with a disability.  Respondent provided notice to petitioner dated May 12, 2009, that the Committee on Special Education (“CSE”) received her referral and requested her consent to conduct an evaluation of her daughter. 

By letter dated May 15, 2009, the middle school principal advised petitioner that her daughter was being suspended for five days.  By second letter dated May 15, the superintendent notified petitioner that a hearing would be held on May 21, 2009 to consider imposing an additional suspension.  The superintendent’s letter advised petitioner of her right to representation by counsel, to question witnesses and to present evidence.  The student was charged with conduct which was insubordinate and/or disorderly, and/or disruptive, and/or violent, and/or endangered the health, and/or morals, and/or safety, and/or welfare of others and/or of petitioner’s daughter.  Specifically it was alleged that the student had knowledge of “pending pranks” in the middle school and placed signs around the middle school that stated, “The countdown has initiated.  Be prepared.  FYB (F**k you B**ch).” 

Petitioner was present at the hearing at which her daughter admitted being guilty of the charge of placing signs around the school that used profanity and that she knew of planned pranks.  The student went on to state that she thought her conduct was “really stupid and disrespectful and immature.”  She then read a statement into the hearing record that included an apology.  The CSE held a meeting on May 21, 2009 that resulted in a determination that the student’s conduct was not a manifestation of a disability.  By letter dated May 21, 2009, the superintendent informed petitioner that she accepted the hearing officer’s report and recommendation finding her daughter guilty of the charge and imposing a suspension for the remainder of the 2008-2009 school year.  Petitioner’s June 12, 2009 appeal was denied by respondent on June 24, 2009.  This appeal ensued.

Petitioner seeks an order that references to the suspension be expunged from her daughter’s school record and that respondent be investigated regarding its alleged cover up of gender motivated attacks on her daughter, as well as its alleged campaign to isolate and ostracize the student from her peers and force her to leave public school.  Petitioner contends that the CSE’s manifestation determination was flawed; her daughter was not guilty of the charges; the penalty was excessive; and the hearing process did not meet minimal requirements of due process.

Respondent contends that the student admitted her guilt; the penalty of suspension for 23 school days was not excessive; petitioner never sought review of the CSE’s manifestation determination and that is not within the Commissioner’s jurisdiction; petitioner was advised in writing, six days prior to the May 21, 2009 hearing of her due process rights; and that petitioner failed to exhaust administrative remedies regarding claims of gender discrimination.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  The 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 Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of A.W., 46 id. 367, Decision No. 15,535).  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of N.C., 46 id. 358, Decision No. 15,532).  Petitioner’s daughter admitted the charge on the hearing record and petitioner made no objection.  Therefore, I find that her admission is sufficient proof of guilt. 

Education Law §3214(3)(c)(1) provides that no pupil may be suspended in excess of five school days unless the pupil and the person in parental relation are given an opportunity for a fair hearing, upon reasonable notice, at which the pupil has the right to representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil’s behalf (Appeal of V.C., 45 id. 571, Decision No. 15,419).  Petitioner alleges that she was denied due process at the hearing.  She does not dispute that she received written notice advising her of the right to counsel, and the right to question witnesses and to present testimony although she complains that the hearing officer did not advise her of those rights at the hearing.  Petitioner was present at the hearing and made no request to question any witnesses or to obtain counsel and did not object to any action or statement made by the hearing officer or by her daughter.  Thus, on the record before me, I find that petitioner was provided reasonable notice of her rights and has not met her burden of demonstrating that her due process rights were violated at the hearing.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  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 of education (Appeal of J.C., 46 Ed Dept Rep 562, Decision No. 15,596; Appeal of C.D. and P.D., 46 id. 459, Decision No. 15,563).  The penalty of 23 days imposed in this case, for posting signs that contain threats on school grounds, is not so disproportionate as to warrant substitution for respondent’s judgment (seeAppeal of A.S., 46 Ed Dept Rep 296, Decision No. 15,514).

Petitioner’s claim relating to respondent’s manifestation determination must be dismissed for lack of jurisdiction because it is properly the subject of an impartial hearing brought pursuant to Education Law §4404(1) and §200.5(j) of the Commissioner’s regulations (Appeal of a Student with a Disability, 46 Ed Dept Rep 258, Decision No. 15,500; Appeal of S.A.M., 44 id. 481, Decision No. 15,238).

Finally, with respect to petitioner’s request that I conduct an investigation of the matters set forth in the petition, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Application of V.M., 46 Ed Dept Rep 531, Decision No. 15,584; Appeal of Koehler, 46 id. 425, Decision No. 15,553).

I have considered petitioner’s remaining contentions and find them to be without merit.