Decision No. 13,408

(May 4, 1995)

SOBOL, Commissioner.--Petitioner appeals respondent's suspension of her son, N.D., and his transfer from the Levy Middle School to the Beard School. The appeal must be sustained in part.

In 1987, N.D. was classified by respondent's Committee on Special Education ("CSE"). On November 3, 1993, N.D. was declassified by the CSE. At that time, respondent sent petitioner a written declassification notice, a plan for transitional services for N.D. and a notice of petitioner's right to an impartial hearing regarding N.D.'s declassification. The transitional services consisted of resource room for 30 minutes per day and counseling for 30 minutes twice a week. Petitioner did not challenge the declassification or transitional services plan. However, petitioner did request N.D.'s evaluation by respondent's '504 committee. Respondent agreed to set up such an evaluation upon the formation of a '504 committee. A '504 committee, separate from the CSE, was established in August 1994.

On September 12, 1994, N.D. was suspended from Levy Middle School for five days pending a hearing on charges that he was in possession of a "box cutter" and a beeper, and had verbally and physically threatened school staff. A hearing was scheduled pursuant to Education Law '3214 for September 16, 1994. At petitioner's request, the hearing was postponed until September 20, 1994. On September 14, 1994, respondent's '504 committee met to evaluate N.D. The '504 committee determined that N.D. has Attention Deficit Hyperactivity Disorder ("ADHD") and was entitled to accommodation for the 1994-95 school year. On September 19, 1994 the '504 committee sent petitioner its written determination and accommodation plan. The plan included counseling twice per week, math lab services, a behavioral management plan, meetings with the school psychologist at least every two weeks, availability of a school psychologist to serve as a resource to team members working with students with ADHD, a monthly review of N.D.'s progress with the building pupil services team, a school sponsored homework program from 2:10 to 3:00 p.m. daily and consultation between the school psychologist and N.D.'s physician. The September 19, 1994 notice also informed petitioner of her right to an impartial hearing to contest the '504 committee's determination and accommodation plan. Petitioner did not request such a hearing.

On September 20, 21 and 23, 1994, a hearing officer appointed by respondent superintendent held a hearing pursuant to Education Law '3214. At that hearing N.D. pled guilty to possession of a box cutter. In addition, the hearing officer found N.D. guilty of disruptive behavior, but not guilty of possession of a beeper. The hearing officer recommended N.D.'s transfer to the William R. Beard School, another school within the district with a smaller student-teacher ratio and additional staff for students. The Beard school has the same curriculum as the Levy School.

On October 6, 1994, the '504 committee met with petitioner and discussed N.D.'s accommodation plan for the Beard school. The accommodations scheduled to be provided at the Beard school were similar to those previously provided at the Levy school, but with more individual attention and teacher team meetings on a weekly, instead of a bi-weekly, basis. Petitioner did not request a '504 hearing to object to this accommodation plan. On November 1, 1994, N.D. was suspended from the Beard school for five days due to an altercation in which he threatened school officials, used abusive language and tried to physically assault members of the staff. On November 8, 1994, the '504 committee determined that N.D.'s alleged November 1, 1994 behavior was not related to his disability. On November 9, 1994, petitioner was notified of her right to a hearing regarding the '504 committee's determination. Petitioner did not request such a hearing. A hearing was subsequently held pursuant to Education Law '3214 concerning the November 1, 1994 charges. That hearing does not form the basis of this appeal. On November 14, 1994, respondent upheld the superintendent's and hearing officer's determinations that N.D. was guilty of the possession of a box cutter and disorderly behavior on September 12, 1994. Respondent further upheld N.D.'s transfer to the Beard school. This appeal followed.

Petitioner claims respondent violated N.D.'s rights pursuant to 29 USC '794 ('504) by suspending and transferring him without first determining whether his alleged September 12, 1994 behavior was related to his disability. Petitioner also claims that respondent violated '504 by failing to timely evaluate N.D.'s change in placement. Petitioner further claims that respondent violated Education Law '3214(3)(c) when it failed to allow petitioner to present evidence tending to mitigate N.D.'s actions. Respondent contends that petitioner's claims are premature because petitioner has failed to exhaust her administrative remedies. Specifically, respondent contends petitioner must seek a hearing pursuant to '504, prior to appealing to the Commissioner. Respondent further asserts that the issue is now moot. Additionally, respondent claims any due process violations were de minimus.

Respondent's procedural claims of lack of jurisdiction and prematurity are without merit. Because respondent used Education Law '3214 to modify N.D.'s program, petitioner had no choice but to seek review of that determination, separate from her right to request a hearing pursuant to '504. To the extent petitioner asserts claims under '504 of the Rehabilitation Act, including complaints about the timeliness of a '504 evaluation, such claims should be made at an impartial hearing held in accordance with procedures adopted by the school district, as required by 29 USC '794 and 34 CFR Part 104.

However, in this case, there are procedural matters relating to '504 that must be examined in the context of my review of respondent's '3214 disciplinary hearing. Although Education Law '3214 does not address the manner in which a school district can impose discipline on students with a disability, '3214 must be applied consistent with federal law and regulation. When a student is determined to have a disability, he or she is entitled to an assessment by a multidisciplinary team to recommend accommodations and modifications necessary to meet the "educational needs of the child as adequately as the needs of nondisabled children are met" (34 CFR 104.33[b] and 104.35). These modifications cannot be further changed without prior evaluation (34 CFR 104.35[a]). Moreover, the failure to provide procedural safeguards to students with attention deficit disorder ("ADD") or ADHD, prior to discipline, violates '504 (Prince George's County Public Schools, 17 EHLR 875; Templeton Unified School District, 17 EHLR 859; Ohio County Public Schools, 16 EHLR 619).

In essence, whenever a student has a known disability or handicapping condition, the '3214 hearing process must be separated into several parts. First, the student's guilt or innocence of the charges must be established. Prior to the imposition of any penalty based upon these findings, there must be a determination as to whether the conduct giving rise to the charges was related to the disability or handicapping condition (Honig v Doe, 484 U.S. 305; Christopher W. v. Portsmouth School Committee, 877 F.2d 1089 (1st Cir. 1989)). Moreover, even where a student has been declassified but later exhibits behavior problems, there must be a nexus determination (Jeffrey S. v. School Board of the Riverdale School District, 21 IDELR 1164). When a nexus between a student's behavior and disability is established, the student's placement cannot be changed without adhering to the due process requirements for changing the placement of a student with a disability or handicapping condition (Metropolitan School District, 969 F.2d 485 (7th Cir. 1992)).

The record here reflects that N.D. had an accommodation plan and, therefore, respondent was aware of N.D.'s disability at the time of the '3214 hearing on September 20, 21 and 23, 1994. The hearing officer recommended N.D.'s transfer to another school as a result of that hearing. In essence, this transfer recommendation was the penalty assessed as a result of the findings. As noted above, it was appropriate for respondent to hold a '3214 hearing to determine whether or not N.D. had engaged in the conduct alleged. However, once N.D.'s guilt was established, respondent could not impose a penalty without first determining whether N.D.'s behavior precipitating the '3214 hearing was related to his disability, because respondent was aware of N.D.'s disability. If there was a nexus, then respondent was precluded from changing N.D.'s placement without a prior evaluation and a determination by the '504 committee (34 CFR 104.35[a]), 34 CFR 104.35[c]).

Respondent asserts no nexus determination was necessary because, even if there were a nexus, a transfer is not a change in placement. This contention is without merit. Whether changing a student's school constitutes a change in placement is both a question of law and fact. When a student is placed in a setting other than the regular educational environment, the committee making the placement shall take into account the proximity of the alternate setting to the person's residence (34 CFR 104.34(a)). In determining the least restrictive environment for a student, the failure to educate a child with a disability in a regular class in his local school, if feasible, violates '504 (Oberti v. Board of Education, 801 F. Supp. 1392 (D.N.J. 1992)). The record reflects that N.D. was moved from his neighborhood school to a different school. In view of the federal regulatory requirements and the Oberti decision, it is possible that such a transfer could constitute a change in N.D.'s placement. Only the '504 committee can review and assess these factors and determine whether, in the context of the circumstances of a particular case, a school transfer constitutes a change in placement. Because N.D.'s transfer could ultimately be determined to be a change in his placement, respondent's '504 committee should have reviewed N.D.'s placement, done appropriate evaluations and made a placement recommendation. The record reflects, however, that the '504 committee did not meet regarding N.D.'s change in schools until after the transfer took place. It was, therefore, impossible for the '504 committee to determine whether this change in school constituted the least restrictive environment for N.D.'s education. Therefore, I find that respondent should have consulted with its '504 committee to determine if there was a nexus between N.D.'s conduct and his disability. Then, if a nexus existed, the '504 committee should have evaluated whether the proposed transfer would constitute a change in N.D.'s placement. Accordingly, I must order N.D.'s records expunged and his transfer invalidated.

Moreover, respondent's decision to transfer N.D. violated Education Law '3214(5). Education Law '3214(3)(c) authorizes suspension as a penalty for student misconduct, not the transfer of a student to another school. Education Law '3214(5) authorizes a principal to make a recommendation to transfer a student, who has not been determined to have a handicapping condition, when such a transfer will benefit the student. The record reflects that N.D. was transferred to the Beard school after a five day suspension and a '3214 hearing. The transfer was not voluntary, and, therefore, was governed by the statutory requirements of Education Law '3214(5). Education Law '3214(5)(b) requires that prior to an involuntary transfer, the person in parental relation to the student shall be provided with written notice of the proposed transfer as well as an opportunity for an informal conference with the principal recommending the transfer. The parent has a right to be accompanied by counsel or any other individual of his or her choice at this conference. If, at the conclusion of such an informal conference the principal continues to recommend the student's transfer under Education Law '3214(5)(d), the person in parental relation also has the right to request a hearing before the superintendent or a designated hearing officer consistent with the due process requirements of '3214(3)(c). The purpose of this hearing is not to establish a student's guilt of any specific conduct, but to determine whether the proposed transfer would be beneficial to the student.

There is nothing in the record indicating that petitioner was aware of respondent's contemplated transfer of N.D. or that she was afforded opportunities to contest this transfer required by '3214(5). A hearing to determine whether a student should be transferred is not the same as a hearing for disciplinary reasons. The issues concerning the merits of transferring a student to another school are, of course, different from whether a student is guilty of disciplinary charges. There is no indication in the record that the '3214 hearing of September 20, 21 and 23 properly addressed the issues surrounding N.D.'s involuntary transfer pursuant to Education Law '3214(5)(d). Because respondent used this hearing to establish N.D.'s guilt but failed to consider whether a transfer would benefit him, I conclude that respondent's sole purpose for holding the hearing was for disciplinary reasons. Therefore, respondent's use of that hearing to effect an involuntary transfer of N.D. was improper. Respondent's failure to provide N.D. and petitioner with the procedural protections required by '3214(5) is another basis upon which I must nullify N.D.'s transfer.

Moreover, even if respondent had attempted to use Education Law '3214(5) to transfer N.D., it would have been improper. Education Law '3214(5) specifically states that it is not applicable to students with a handicapping condition. Although the statute does not specifically exempt students with an accommodation plan pursuant to '504, the basis for the exemption for students with a handicapping condition is equally applicable to students with disabilities pursuant to '504. Pursuant to 34 CFR 300.532-533, any placement of a student with a handicapping condition must be made by the CSE. That regulation parallels the requirement that any placement of a student with a disability, who has not been determined to have a handicapping condition, must be made by a '504 committee (34 CFR 104.35[c]). Where such a committee does not exist, the decision is made by the CSE (34 CFR 104.33[b][2]). Therefore, N.D.'s transfer violated due process protections afforded by '504.

Finally, petitioner alleges various procedural violations by respondent during the '3214(3)(c) hearing process. Because I have nullified the transfer, I will not address these alleged procedural violations.

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that respondent expunge N.D.'s record of his transfer, place him back in the original school with his accommodation plan in place and then convene a '504 committee meeting to develop an appropriate behavior plan.

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