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Decision No. 17,237

Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by his parents, from action of the Board of Education of the City School District of the City of Long Beach regarding student discipline.

Decision No. 17,237

(October 27, 2017)

Ingerman Smith, L.L.P., attorneys for respondent, Joseph E. Madsen, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the City School District of the City of Long Beach (“respondent”) upholding the suspension of their son.  The appeal must be dismissed.

On January 5, 2011, petitioners’ son, a student in respondent’s middle school, was involved in an incident where he allegedly engaged in misconduct while on a school bus.  Specifically, the student showed images stored on his “ITouch” to other students on the bus.  Some of these images contained material involving weapons, violence, and pornography.  As a result of that incident, he was suspended for five days beginning Monday, January 10.  By letter dated January 10, petitioners requested that the student be evaluated for special education and/or accommodations pursuant to section 504 of the Rehabilitation Act (“§504”).  It is unclear from the record when petitioners were notified of the five-day suspension. However, on January 11, respondent’s principal sent petitioners a revised notice of the five-day suspension. Petitioners were notified that a superintendent’s hearing would be held, and such hearing took place on January 13. During the hearing, the student admitted engaging in the conduct charged.  At the conclusion of the hearing, the hearing officer found the student guilty and suspended him for the remainder of the school year.  Respondent’s superintendent adopted the hearing officer’s recommendations.  Petitioners appealed to respondent, which upheld the suspension.  This appeal ensued. 

Petitioners challenge the student’s suspension, contending that he should have been deemed a student presumed to have a disability and that, in imposing discipline, respondent should have complied with the requirements of 8 NYCRR Part 201.  Petitioners seek, among other things, an expedited evaluation of the student by respondent’s Committee on Special Education (“CSE”) pursuant to §504 and the Individuals with Disabilities Education Act (“IDEA”).  They ask that he be immediately returned to school upon completion of the evaluation.  Petitioners also request that the student be placed in another school district at respondent’s expense.  Petitioners also demand tutoring to fulfill the student’s foreign language requirement while he is on suspension.  

Respondent asserts that the student was not a student presumed to have a disability for purposes of imposing discipline upon him and that his suspension for the remainder of the school year was appropriate.  Respondent further asserts that, subsequent to petitioners’ January 10 request, its CSE evaluated the student.[1]  Respondent also maintains that, while the student was suspended, the district arranged for home instruction for eight hours per week and the student received those services.

I will first address several procedural matters.  Petitioners served a reply to respondent’s answer.  Pursuant to Commissioner’s regulations, a reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710).  Respondent’s affidavit of service indicates that the answer was served by mail on April 13, 2011.  Therefore, petitioner’s reply should have been served no later than April 27; however, petitioners served their reply on May 4.  Consequently, the reply is untimely and has not been considered.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No.15,836).  Shortly after commencement of this appeal, in which petitioners did not seek interim relief, the school year ended and the student’s suspension was completed.  Because petitioners’ son has served his suspension and petitioners do not seek expungement of the suspension from the student’s record, the matter is moot (Appeal of H.B., 49 Ed Dept Rep 433, Decision No. 16,073, aff’d Supreme Court, Albany County, McGrath, J., March 23, 2011; Appeal of B.J.F., 49 id. 282, Decision No. 16,026).  Additionally, the student appears to have received home instruction through the remainder of the school year during his suspension.  Petitioners’ claims regarding the student’s suspension and alternate instruction during the suspension are, therefore, academic (Appeal of C.M., 50 Ed Dept Rep, Decision No. 16,142).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Petitioners’ claim – that the student should have been treated as a student presumed to have a disability for disciplinary purposes – has no merit.  Section 201.5(a) of the Commissioner’s regulations provides, in part:

Where the school district is deemed to have knowledge that a student was a student with a disability before such behavior occurred, such student is a “student presumed to have a disability for disciplinary purposes.”

A district is only deemed to have knowledge of a disability if one of several conditions is met prior to the time the behavior occurred (8 NYCRR §201.5[b]).  In this case, petitioners submit emails discussing alleged bullying experienced by their son.  Petitioners also describe a meeting at which they claim discussion took place about a CSE evaluation, but respondent denies that assertion and submits affidavits in support of its denial. 

Indeed, it was not until after the events of January 5, 2011 that petitioners submitted a written referral to the CSE for a determination as to whether their son was eligible to be classified as a student with a disability, as required under §201.5 of the regulations.  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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  Petitioners submit no evidence to demonstrate that any of the conditions set forth in 8 NYCRR §201.5(b) were met.  Accordingly, petitioners have not met their burden of establishing that §201.5(a) applies in this case (Appeal of a Student Suspected of Having a Disability, 55 Ed Dept Rep, Decision No. 16,912; Appeal of a Student Alleged to Have a Disability, 49 id. 302, Decision No. 16,034).

Finally, to the extent that petitioners intend to assert claims under the IDEA or §504, I lack jurisdiction to entertain them.  Enforcement of §504 is within the jurisdiction of the federal courts, the U.S. Department of Justice and the U.S. Department of Education and may not be obtained in an appeal brought pursuant to Education Law §310 (Appeal of C.C. and E.C., 48 Ed Dept Rep 528, Decision No. 15,938; Appeal of a Student with a Disability, 48 id. 108, Decision No. 15,806).  Similarly, claims brought to enforce rights under the IDEA must be addressed through the due process provisions of the IDEA, 20 USC §1415, and Education Law §4404.

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




[1] According to the record, upon evaluation, the student was not identified as a student with a disability under the IDEA, but was provided with a §504 accommodation plan.