Decision No. 12,951

(June 28, 1993)

D'Andrea and Goldstein, Esq., attorneys for respondent, Vincent P.

D'Andrea, Esq., of counsel

SOBOL, Commissioner.--Petitioner alleges respondent is guilty of illegal acts in connection with its treatment of her grandson. The appeal must be dismissed.

Petitioner has raised a wide variety of issues concerning her grandson. Because the petition is inartfully drafted, it is difficult to determine the basis of petitioner's complaints. However, it appears that petitioner's grandson, a thirteen year old student at respondent's A.B. Davis Middle School, was suspended ten times for five days or less between October 14, 1992 and March 22, 1993.

Petitioner contends that the suspensions were imposed by school officials other than the principal in violation of Education Law '3214. However, the record clearly indicates that the principal imposed the suspensions. Petitioner's contention to the contrary is therefore meritless.

Petitioner also maintains that respondent has not provided alternative instruction for her grandson during the suspensions. The record, however, indicates otherwise. Most of the suspensions in this case were "in-school", during which the student received instruction in a separate room. In the few instances where the suspension was out of school, assignments were provided and the student's education continued. The record also indicates that the out of school suspensions were usually terminated in one or two days, after a parental conference.

Petitioner further maintains that respondent has in some unspecified way denied her grandson due process. In addition, petitioner claims that respondent and its agents have discriminated on the basis of race by granting conferences with the principal and class placement of students. Petitioner also contends that respondent has subjected her grandson to cruel and inhuman treatment, and that its agents have made racially derogatory remarks to him. Respondent denies those allegations.

In an appeal to the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR '275.10; Appeal of Negrin, 29 Ed Dept Rep 484; Appeal of Executone Northeast, Inc., 29 id. 18). Other than petitioner's bare assertions on these issues, she offers no evidence to support her contentions. In light of respondent's denial of these allegations, petitioner has failed to meet her burden of proof.

I have reviewed petitioner's other contentions and find them without merit. Since this appeal is dismissed because of petitioner's failure to provide adequate evidence to support her claims, it is not necessary to address the numerous affirmative defenses raised by respondent.

Finally, the record indicates that because of continued disruptive and rude behavior, petitioner's grandson has been repeatedly suspended from school. Such behavior is affecting his ability to benefit from instruction, suggesting that he may be a student with a handicapping condition (see, Matter of a Handicapped Child, 24 Ed Dept Rep 77, 79). If petitioner's grandson has not been evaluated by respondent's committee on special education, respondent is directed to initiate such an evaluation within ten days of the date of receipt of this decision.

THE APPEAL IS DISMISSED.

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