Decision No. 12,563

(August 19, 1991)

SOBOL, Commissioner.--Petitioner appeals from respondent's use of certain disciplinary measures with his son. The appeal must be sustained in part.

Petitioner's son is a seventh grade student suspected of having a handicapping condition. Despite a generally excellent academic record, the student's grades and behavior deteriorated significantly during the 1988-1989 school year, while he was attending Orenda Elementary School in the Shenendehowa Central School District (the district).

In November 1988, a certified social worker affiliated with the Saratoga County Mental Health Center (SCMH) met with school officials to develop a behavior modification plan for petitioner's son. Pursuant to this plan, respondent implemented a number of interventions during the 1988-89 school year. The record does not establish the extent to which these interventions were successful in improving the student's behavior.

Petitioner's son participated in a day program at SCMH during the summer of 1989. Apparently, petitioner did not provide respondent with information regarding his son's progress in this program until the conclusion of the 1989-90 school year. At that time, petitioner supplied an unsigned document entitled "progress notes and program summary" which, among other things, suggested that his son had been evaluated for attention deficit hyperactivity disorder (ADHD) by a SCMH team psychiatrist. The document, however, did not describe the results of such evaluation, nor did petitioner provide a report from the team psychiatrist.

In October 1990, the building principal referred petitioner's son to the Committee on Special Education (CSE) for evaluation. Petitioner, however, withheld consent for his son's evaluation. Respondent thereafter requested petitioner to provide medical documentation that his son had been clinically diagnosed as having ADHD. In response to this request, petitioner supplied respondent with a handwritten note dated January 17, 1991, signed by the SCMH social worker. Although the note indicated that the student had been diagnosed as suffering from ADHD, respondent insisted that it would accept evidence of such diagnosis only from a qualified medical professional.

In light of petitioner's continuing refusal to permit evaluation by the CSE, respondent initiated an impartial hearing to determine whether such evaluation was warranted without parental consent (8 NYCRR 200.5[b][3]). The hearing was scheduled to commence on February 15, 1991. On January 31, 1991, however, petitioner consented to evaluation by the CSE, and the hearing was cancelled. Although it appears that petitioner's son was subsequently evaluated, the pleadings herein do not contain appropriate evidence regarding the CSE's recommendations.

The primary issue in this appeal is discipline. On January 18, 1991, an English teacher discovered petitioner's son in possession of a memorandum from the principal to the English teacher regarding the student's referral to the CSE. The teacher believed that petitioner's son had taken this memorandum from the teacher's desk. Consequently, the teacher removed petitioner's son from his classes for the balance of the school day. The student was directed to take his school work to the library and work on it independently under the supervision of the librarian. Petitioner alleges that this procedure improperly isolated his son and deprived him of educational services.

The removal of a student from instruction for disciplinary purposes constitutes a suspension, entitling the student to the procedural safeguards of Education Law '3214 (Appeal of Ackert, 30 Ed Dept Rep 31, 33). A school may not avoid the provisions of '3214 simply by placing the student in a study hall and claiming there is no suspension. Respondent does not dispute that petitioner's son missed English, physical education and band when he was removed from class on January 18, 1991. The record indicates, however, that respondent failed to comply with the applicable provisions of Education Law '3214 in connection with this incident. It is well established that study halls do not suffice as alternative instruction for students under the compulsory attendance age (Education Law '3214[3][e]; Appeal of Ackert, 30 Ed Dept Rep 31, supra; Matter of Malpica, 20 Ed Dept Rep 365). It is also clear that teachers are not authorized to suspend students from class (Education Law '3214[3][b]; see, Ross v Disare, 500 F Supp 928, 934; Matter of Caulfield, 18 Ed Dept Rep 574, 576). In light of the foregoing, I must sustain petitioner's contention that his son was improperly denied educational services on January 18, 1991.

Petitioner also contends that certain other disciplinary methods used by respondent were inappropriate for a student suffering from ADHD. The record indicates that petitioner's son was frequently removed from the school cafeteria for throwing food and initiating conflict with other students. On those occasions, he was required to eat his lunch in the principal's office. The student, a licensed ham radio operator, often asked for permission to read his radio operator's manual during that time. Pursuant to school policy, however, he was not permitted to read while eating his lunch in the principal's office.

As an educator, I question the wisdom of any policy which expressly discourages students from reading. However, I do not find that respondent's practice of sending petitioner's son to the principal's office was improper. There is no indication in the record that petitioner's son was deprived of any aspect of his instructional program on those occasions. Regarding petitioner's argument that this intervention was inappropriate for a child suffering from ADHD, the record confirms that respondent had no medical basis for concluding that petitioner's son actually had ADHD, or that he should be disciplined any differently than other students. On this point, petitioner is reminded that it was his own refusal to provide respondent with the medical information it had requested, which significantly delayed the district's attempts to take appropriate action regarding the student's suspected condition.

Finally, petitioner complains that respondent has not complied with a request for his son's educational records. On January 3, 1991, petitioner hand-delivered a letter to the members of the board of education, stating that he was requesting his son's records pursuant to the Freedom of Information Law (Public Officers Law article 6). Respondent asserts that it was unable to process petitioner's request in a timely manner because petitioner failed to submit the request to respondent's records access officer, in accordance with district policy. The record suggests, however, that by February 25, 1991, respondent had taken steps to comply with petitioner's request.

The Commissioner of Education has no jurisdiction to address issues arising under the Freedom of Information Law (Application of Strober, 29 Ed Dept Rep 459, 460). The parties are reminded, however, that parents need not invoke the Freedom of Information Law to obtain information regarding their children's educational records. Parents seeking access to their children's records should proceed, instead, under the Family Educational Rights and Privacy Act (20 USC '1232g), also known as the "Buckley Amendment," enforcement of which has been vested by Congress in the Secretary of Education (see, Appeal of a Child with a Handicapping Condition, 27 Ed Dept Rep 19).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED, and

IT IS ORDERED that respondent expunge from the student's disciplinary record any reference to the suspension that occurred on January 18, 1991; and

IT IS FURTHER ORDERED that respondent comply in the future with the provisions of Education Law '3214.

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